House of Lords
Tuesday, 7 July 2009.
Prayers—read by the Lord Bishop of Exeter.
Death of a Member: Lord Blaker
Disabled People: Independent Living
My Lords, the Government have made progress with a number of proposals to assist independent living for disabled people. These include the common assessment framework for adults; the fairer contribution guidance, which will be published soon; regulations to allow direct payments to be made to adults lacking capacity, from autumn 2009; ratification of the United Nations convention for disability rights on 9 June; and the soon-to-be-published Care and Support Green Paper.
My Lords, I thank my noble friend for that very helpful reply, but would she agree that the Government and supporters of my independent living Bill may be in conflict, because the Government want to go slower and we want to go faster in our approach? Would my noble friend and the rest of the Government consider a compromise proposal, whereby the Government enact the Bill now but then take time in implementing it—say, over two years? That would be a beginning of a breakdown of the stances on both sides.
My Lords, my noble friend is very tempting. I commend him for his passion and determination to drive progress on the very important issues of independent living and equality for disabled people. As I have already said, this Government continue to make real progress on this. I have listed some of the key actions that we have delivered since we discussed my noble friend’s Bill in March. The Government’s programme of action is making a real difference and will continue to do so. The work that we are doing and leading on, together with the Equality Bill being discussed in the other place, means that many of the goals that we all desire can be delivered without the need to enact my noble friend’s Bill.
My Lords, the Care and Support Green Paper will be published in July. I apologise for the delay. It will lay out the overall direction and series of choices for reform of the care and support system. It aims to ensure that care is both high quality and cost effective and that people have choice and control over their care. The publication of the Green Paper will be followed by a full and formal consultation to run into the autumn, to allow everybody to take part. This is a very large policy reform, which needs to be discussed by the whole nation. From that will flow the reforms that we hope will ensure that we get this particular issue of care correct.
My Lords, do the Government agree that we have been going over this ground for a long time? The noble Lord is basically asking for something that represents best practice across the board. When the Minister responds, can it be borne in mind that the noble Lord, Lord Ashley, is not calling for anything new—nothing that has not been at least tacitly agreed by virtually all sides of the House?
My Lords, the noble Lord makes an important point in support of my noble friend. The independent living strategy, of which the noble Lord will be fully aware, is a five-year strategy. It is about the needs of disabled people and the need to support them in their daily lives to have greater choice and greater control. The Government’s whole programme of activity feeds into that strategy.
My Lords, does my noble friend agree that the single most important thing to enable disabled people to have independent living is the provision of specially designed houses? What are the Government doing to provide independent housing for disabled people?
My Lords, there is indeed a large demand for housing adaptations and housing specifically designed for disabled people. We regard the disability facilities grant as an important part of that. It has increased from £57 million in 1997 to £146 million in 2008. We have also made it clear to local authorities that, in the light of their local circumstances, they are expected to build into their planning the needs of specific groups such as disabled people. When considering housing, they are expected to take account of the need to build homes that are appropriate for the independent living of disabled people.
My Lords, I have raised this issue before, as have many noble Lords on the Liberal Benches. I declare an interest because I have a daughter with multiple sclerosis. Is the Minister aware that people who are severely disabled feel the cold much more than ordinary individuals? I have asked the Government to look into giving the winter fuel allowance to people of whatever age who are in receipt of full care allowance.
Financial Institutions: Auditors
My Lords, Part 42 of the Companies Act 2006 prohibits the appointment of an audit firm where a partner in that firm is also a director or employee of the audit client, its parent or a subsidiary.
My Lords, I thank my noble friend for that reply, but a recent article in the Sunday Times states:
“As Goodwin went on to build RBS through an acquisition spree, he kept turning back to Deloitte”,
his former employer,
The firm’s fees rose from £4 million in 2000 to £32 million in 2007. How come all the accounts of the major banks were signed off as presenting no problem just one year ago? When will the necessary measures follow from the current spate of reviews so that, whatever vested interests stand in the way, the public can be assured that there can be no repeat of the tragedy that the banks and their auditors have caused for many millions of workers and their families?
My Lords, I thank my noble friend for his Question, which covers a number of important issues. The independence of auditors has been the subject of increased regulation over the past 20 years. Indeed, the Treasury Select Committee recently recommended a consultation on the issue of auditors earning fees from non-audit work and the Financial Reporting Council is planning to consult later in the year. On the general point of where the auditors were during the financial crisis, there are lessons to be learnt for the accounting profession, just as there are for many different aspects of the financial services industry. As someone who worked in the industry, I know that auditors were involved in the risk governance and control side. We are not aware, however, of any evidence of an audit failure in one of the banks where the Government have had to intervene. Furthermore, the Audit Inspection Unit of the Financial Reporting Council, which reviews the audits of large firms, has concluded that audits are fundamentally sound.
My Lords, is it not the case that, despite the Companies Act 2006 and the provision that the Minister has quoted, too often there is an altogether too cosy relationship between the audit company and the bank or financial institution—or, for that matter, large company generally? Does this not arise because there are too few auditors who are thought to be capable of doing the job of a major company or bank? Does my noble friend have any suggestions as to how to deal with that?
My Lords, after Enron, considerable consideration was given to an outright ban on audit firms doing non-audit work. The conclusion was that that was not necessary and that the ethical standards board of the financial reporting system would ensure that the audit firms were independent. The FSA is also there to ensure that the audit firms are operating independently. Personally, I think that we could do with a few more audit firms. The industry is looking at that. It is important that we do not have just four firms, albeit that they are London-based and doing a great job.
My Lords, shall we hear the noble Lord, Lord Lawson, first?
My Lords, I am most grateful. Will the Minister, who has a background that we all respect, look at this again? This is a question not, in my judgment, of the major auditing firms being corrupt but rather of a degree of complacency and incompetence. Is the noble Lord aware that, when Johnson Matthey Bankers went bust on my watch, I authorised the Bank of England to sue the auditors—Arthur Young, a very respectable firm—for incompetence, in effect? The Bank of England won and the auditors lost. Is it not surprising that nothing of the sort has happened in the present, much worse, crisis?
My Lords, first, we should stress that the choice of auditors is a matter for the board and shareholders. Secondly, we should remember that they have to seek re-election every year. That is the role of the board and the shareholders. We should also remember that the FRC is conducting a review of the combined code and that the Walker review is reviewing the governance of the industry. Putting all that together, I think that we are doing enough to review the lessons learnt. I also believe that it is incorrect to say that all banks have a cosy relationship with their auditors. That is not my personal experience.
My Lords, clearly there is overwhelming support in your Lordships’ House for the point made by the noble Lord, Lord Lea of Crondall. Without wishing to give a heart attack to the noble Lords, Lord Stoddart and Lord Pearson of Rannoch, who I see is not in his place, does the Minister accept that a major driver for reforms in this area has come from the European Commission? Is he aware of any action that the European Commission now proposes to take in this area?
My Lords, it is important to highlight the fact that Europe is looking at the future of the accounting profession and that issues are coming out of the Sarbanes-Oxley legislation on the limited liability of auditors. The profession will have to learn lessons from the crisis. Europe is looking at it and we in the UK are looking at it. It is important to wait for the FRC, Walker and other reviews and then put those all together and assess the implications.
My Lords, following the question from the noble Lord, Lord Lawson, does not my noble friend find it surprising that the major audit firms of the major banks were giving clean, unqualified certificates and yet a week or two later billions of pounds were being written off the balance sheets for which the auditors had given a clean certificate? Therefore, is it not surprising that some auditors have not been sued?
My Lords, it is important that we are clear on the purpose of an audit, which is to examine the accounts prepared by the directors of a company and to state whether they have been properly prepared and give a true and fair view of the results. That is exactly what the industry believes that it did. The banks are comfortable. It is their duty under the Companies Act to make sure that that happens.
My Lords, is my noble friend aware that he has put his finger on precisely the people who are at fault here—the accounting profession? Many of us have asked questions about this several times, but at no point has the accounting profession—namely, its professional bodies—got involved. Separate from whether we are ready for prosecution, we are simply ready to see whether professionally these firms have behaved properly. All the indications are that the incentives that confront them are to behave improperly, because if you query the accounts you lose the business.
My Lords, let me be clear: there are lessons to be learnt. The causes of the problems were greed, mismanagement and mispricing of risk. A whole series of issues caused the crisis. I do not disagree that it is critical that the accounting profession learns lessons from the crisis. It cannot walk away and say, “We weren’t involved in it”. I agree with the comments that have been made. The profession is a very important part of the industry and it is important that it learns lessons.
Disabled People: Toilets
My Lords, as well as the Changing Places campaign being highlighted in last year’s Improving Public Access to Better Quality Toilets—A Strategic Guide, and this year’s revision of British Standard BS8300, which includes for the first time guidance for such toilet facilities, a review of Part M of the building regulations on access to and use of buildings will begin this year, and will consider the possible inclusion of Changing Places facilities.
My Lords, I thank the noble Lord for that Answer. Is it not possible to amend Part M of the building regulations to ensure that toilets for people with profound and multiple disabilities are fully in operation in the next year or two, rather than waiting for a further review?
My Lords, I congratulate the noble Lord on the leading part that he has played in the powerful campaign around Changing Places. There is a process for changing the building regulations, which generally occurs when looking at a range of issues that might need to be taken into account. There is a process around consultation and research before that can be fully implemented. Currently, it is expected that the review of Part M of the building regulations will not be completed until 2013.
My Lords, my noble friend is right to flag up the revised British Standard, BS 8300, on the design of buildings and the needs of disabled people that was published in March of this year. For the first time, this document contains guidance on the design and installation of Changing Places toilets.
The standard helps companies to make good judgments on how they can meet their obligations under the Disability Discrimination Act and demonstrate alternative means of complying with the requirements of the building regulations. While the standard is not mandatory, it is widely used by commercial companies and public bodies. We would expect the revised guidance to continue to play an important role, but we will watch its impact closely.
My Lords, I welcome that government policy promotes the idea of community participation and active citizenship. The lack of Changing Places toilets means that thousands of disabled and older people do not have the freedom to use community facilities. How will the Government work with large supermarkets and train stations to help them to provide these facilities?
My Lords, we have to engage fully. For noble Lords who have not been particularly focused on this issue, the availability of suitable toilet accommodation determines very much the pattern of the lives of people with profound physical and learning difficulties, their families and carers, and is extremely limiting for them.
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.
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?
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.
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?
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.
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?
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”
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.
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?
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.
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.
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”.
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.
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?
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.
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?
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
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
Business of the House: Access to EU Documents Report
Motion to Refer to Grand Committee
European Communities (Definition of Treaties) (Cariforum Economic Partnership Agreement) Order 2009
Motion to Approve
Companies’ Remuneration Reports Bill [HL]
Order of Commitment Discharged
That the order of commitment be discharged.
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.
Coroners and Justice Bill
Committee (5th Day)
163: Clause 44, page 28, line 16, leave out paragraphs (a) and (b)
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 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,
“gentlemen habitually carried lethal weapons and acted in accordance with a code of honour, which required insult to be personally avenged by instant angry retaliation and in which the mandatory penalty for premeditated murder was death. To show anger ‘in hot blood’ for a proper reason by an appropriate response was not merely permissible but the badge of a man of honour”.
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—
“by pulling him by the nose, or filliping him upon the forehead”—
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 the killing of a man in the act of adultery with one’s wife. The reason given was:
“for jealousy is the rage of man and adultery is the highest invasion of property”.
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,
“though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions”.
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,
“something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act."
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.
The concept of measuring the conduct of the accused against the reaction of a hypothetical reasonable man caused great difficulty. Luc Thiet Thuan, a case in the Privy Council in 1997, in which I appeared for the appellant, was a case where the defendant suffered from organic brain damage at birth, which gave rise to epileptic attacks. The provocation from his former girlfriend was that she compared him unfavourably to her new boyfriend, and said that he was so quick that he was like a newspaper delivery boy. Certainly, he lost his self-control. The question was whether, in fairness, he should be compared to a hypothetical reasonable man, from whom all attributes except sex or age had been removed, or to a reasonable man suffering from brain damage. What was fair?
Their Lordships divided. The noble and learned Lord, Lord Steyn, delivering a powerful dissenting judgment, which was later followed in the English Court of Appeal and confirmed in the case of Smith (Morgan) in the House of Lords by a majority of three to two, found in favour of the comparison with a reasonable man suffering from brain damage—notwithstanding that the decision gave rise to what the noble and learned Lord, Lord Hoffman, described as “monsters”, such as the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue-sniffer. In deference to the decision of the House of Lords in Smith, the Judicial Studies Board issued specimen directions to the judges in respect of provocation, based on the Smith decision, and juries were so directed after 2001.
Then, in the case to which I referred earlier—the Attorney-General for Jersey against Holley—the Privy Council, by a majority of six to three, rejected the view of the noble and learned Lord, Lord Steyn, in Luc, although the minority, led by the noble and learned Lord, Lord Bingham, would have followed him. By now your Lordships will appreciate the degree of discussion and consideration of these issues that have divided the senior courts of this land—the House of Lords and the Privy Council.
In December 2005, in the case of James and Karimi, five judges sat in the Court of Appeal and held, unusually, that the principle set out by the majority in the Jersey case was correct, although it was a decision of the Privy Council, and that the House of Lords decision was not to be followed.
In the meanwhile, the Law Commission was tasked to look at the law of murder and to make recommendations on the partial defences of provocation and diminished responsibility. Its 2004 report concluded:
“The term loss of self-control is itself ambiguous because it could denote either a failure to exercise self-control or an inability to exercise self-control. To ask whether a person could have exercised self-control is to pose an impossible moral question. It is not a question which a psychiatrist could address as a matter of medical science, although a noteworthy issue which emerged from our discussions with psychiatrists was that those who give vent to anger by ‘losing self-control’ to the point of killing another person generally do so in circumstances in which they can afford to do so. An angry strong man can afford to lose his self-control with someone who provokes him, if that person is physically smaller and weaker. An angry person is much less likely to ‘lose self-control’ and attack another person in circumstances in which he or she is likely to come off worse by doing so. For this reason successful attacks by an abused woman on a physically stronger abuser take place at a moment when that person is off-guard”.
In summary, the Law Commission stated that,
“the requirement of loss of self-control was a judicially invented concept, lacking sharpness or a clear foundation in psychology. It was a valiant but flawed attempt to encapsulate a key limitation to the defence—that it should not be available to those who kill in considered revenge”.
The Law Commission concluded that a positive requirement that the accused had suffered a loss of self-control was unnecessary and undesirable.
Then there was extensive consultation. Everyone who could be consulted on this was consulted. The Law Commission came back with its report, Murder, Manslaughter and Infanticide, published in November 2006, where it revisited this area, and stated:
“The requirement of a loss of self-control has been widely criticised as privileging men’s typical reactions to provocation over women’s reactions. Women’s reactions to provocation are less likely to involve a loss of self-control as such and more likely to be comprised of a combination of anger, fear, frustration and a sense of desperation. This can make it difficult or impossible for women to satisfy the loss of self-control requirement, even when they otherwise deserve a partial defence”.
So the Law Commission, in its new recommendation, did not seek to resurrect the requirement of loss of self-control. It pointed to research that showed that in cases where provocation has been pleaded, although there may be uncorroborated evidence that the killing took place in anger, evidence of the loss of self-control, which the law requires, was much harder to find.
I have given that historical introduction for us to consider what is a dog’s breakfast of an attempt to reform the law on provocation—that is Clause 44. What do we see there? Despite the recommendations of the Law Commission after extensive consultation, Clause 44(1) is predicated on the idea that the defendant’s,
“acts or omissions in doing or being a party to the killing resulted from D’s loss of self-control”.
The loss of self-control is to have a “qualifying trigger”. Then the reasonable man is brought into the picture: subsection (1)(c) asks whether,
“a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way”.
Despite the clear recommendation of the Law Commission, despite all the qualifications that have been expressed and the diverse opinions that have appeared in the courts, the Government, in attempting this partial reform of the law of murder, have introduced loss of self-control as its central feature.
Clause 45 states that a,
“loss of self-control had a qualifying trigger”—
I do not know whether that word has appeared in anything other than a statute referring to arms before—
“if subsection (3), (4) or (5) applies”.
Subsection (3) states:
“This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence”,
from the victim against the defendant or another identified person. The concept could be expressed in a different way and is no doubt valid, but in the context of the clause it does not assist.
Subsection (4) states:
“This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character”.
What on earth is that supposed to mean?
Then you come to paragraph (b), which says,
“to have a justifiable sense of being seriously wronged”.
Nothing in this part of the Bill reverses the burden of proof. It is for the prosecution, therefore, to disprove that the circumstances were of an extremely grave character and that the defendant had a,
“justifiable sense of being seriously wronged”.
How does it do that? The clause is silent.
Subsection (6) contains qualifying triggers, but there are exceptions. The first, paragraph (a), is that the defendant’s,
“fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said”.
Paragraph (b) says that,
“a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said”.
Finally, the subsection refers to,
“the fact that a thing done or said constituted sexual infidelity”.
Again, what is that supposed to mean?
I recall a case in which the noble Lord, Lord Carlile, and I were involved. I prosecuted and he defended. A young man was in a relationship with an older man, but he also had a girlfriend. The provocation came when the older man said to the younger man, “If you do not do whatever we do together again, I will tell your girlfriend”. That was the provocation. He was stabbed 70 times. It certainly showed a loss of control. My noble friend Lord Carlile—as so frequently, although not always—was successful. The jury returned a verdict of not guilty of murder but guilty of manslaughter. I can think of another case in which I was involved in which a person fired a revolver. He struck two people with two bullets but there were four bullets left in the gun. The Court of Appeal held that he had not lost self-control as, if he had done, he would have fired all six bullets. There was no case of provocation, therefore, as it could not be shown that he had lost his self-control.
This is all nonsense. It is derived from antique law and it has been mangled in the process of producing this Bill. I was not here last week, for reasons that my noble friend chose to tell your Lordships; I will talk to him later about that. You have to compare this with the elegant amendment that was moved on that occasion by the noble and learned Lord, Lord Lloyd, in which these concepts of loss of control of the reasonable man were removed. The law of murder, if we are not to have it completely revised, as we would wish, was made a little more sensible. I beg to move.
The encyclopaedic exegesis of the law of provocation by the noble Lord, Lord Thomas, has lifted a heavy burden from my shoulders and enabled me to be uncharacteristically brief. Despite the fact that we have a large number of amendments to this clause, our amendments on loss of control as a partial defence to murder are designed to make the defence easier to apply. These amendments are a mixture of suggestions and of policy—and indeed probings—to find out exactly how the Government imagine the new partial defence might apply.
The essential point is that there should be a gross provocation—that is contained in our Amendment 163A—that triggers the killing. The amendment on its own does not refer to any time period and so would not prevent the defence from being used in so-called slow-burn cases. If the provocative behaviour that caused the loss of control was so egregious as to allow the defence to be raised, it would not matter how immediate it was before the killing. However, the requirement that the provocation be gross would mean that the loss of control must be sudden and in response to that behaviour.
Our Amendment 164A concerns the role of revenge. The view that the defence would be justified only when there was a sudden loss of control makes it hard to square with the notion of revenge. Indeed, the Government have recognised that the motive of revenge would prevent the defence from being raised in the first place. Curiously, however, they have qualified the sort of revenge that would be unacceptable. Only considered revenge would exclude the defence. That raises the question of what sort of revenge would be compatible with using the defence—presumably, unconsidered revenge. Quite how it will be determined in court and what degree of consideration is valid or, indeed, invalid are unclear. This seems to be a case of legislative drafting that is destined to exercise the judiciary’s minds for many years to come.
Our amendment would remove this qualification. The Bill would then exclude any action taken in revenge being defensible. This would mean that people who killed in cold blood would never be able to raise the defence of loss of control. However, a defendant who could show that there was a gross provocation that triggered his loss of control would still have the benefit of a heat-of-the-moment defence.
Amendment 165A refers to trial procedures. Its gist is to make the defence available even if the circumstances were adduced by someone other than the defendant. Amendments 169A, 169D, 169E, 169F and 169G are probing amendments to find out exactly what behaviour the Government consider would trigger the defence.
Finally, Amendments 168A, 168B and 168C probe the proximity of the offence to the cause. We believe that this is a crucial issue. The defence of provocation has been reworked into the partial defence of loss of control, which has a qualifying trigger attributable to the fear of violence against the defendant by his victim. One of the key issues behind this is the concern that battered women are not able to claim the current defence, despite ongoing violence to them—in other words, the slow-burning fuse. We quite accept that this is a problem that needs to be addressed in the criminal law; but how long can the fuse be while still forming the qualifying trigger? “Reasonably proximate” does not mean that all the relevant events must be immediate to one another; but it sets out a test of what can be considered to qualify. The amendments simply ask what natural limit there will be between the offence and prior events that have caused the defence to be adduced.
This is a question that troubled me for many years in my very humble position as a recorder. Is my noble friend saying that they are going to give up trying to test the guilt of a man who has lost his reason by assessing what a man would do if he had kept his reason, or have they gone away from that to test the man as he is according to what he did? The business of testing a man who has lost his reason by what a reasonable man would do is, in my respectful opinion, utter nonsense.
My noble friend raises an important question that has been testing the courts, as my noble friend well knows, since the passing of Section 3 of the Homicide Act 1957. Indeed, that is one of the reasons why the Government have introduced the clauses in this Bill. In my view, the test must always be measured against the reasonable man, despite the fact that it seems nonsense to my noble friend. To attempt any other solution would be wholly against the objectives which not only this Government but other Governments who have had to deal with the law of provocation have always sought to achieve.
I have two brief observations to make. First, the noble Lord, Lord Thomas of Gresford, has set out the background and history so well that no addition is called for, save one. In the Holley case from Jersey, the ninth Law Lord also said that the law called for comprehensive reform. In other words, he agreed with the other eight who said, “No tinkering with parts of the law of murder”. The logical conclusion from the argument that he made was that the clauses, instead of being further tinkered with here, should not stand part of the Bill at all. That comes in with Amendment 163 in the group, so technically I am in order in saying now that we should not indulge in any of these further revisions or amendments but should get rid of them lock, stock and barrel. We should let the Law Commission advise, there should be a proper consultation, and there should be a Bill dealing with the law of murder.
Secondly, Clause 45(6)(c) states that,
“the fact that a thing done or said constituted sexual infidelity is to be disregarded”.
However, we are now in the field of looking at,
“circumstances of an extremely grave character”,
and the defendant having a justifiable sense of being seriously wronged. We will lose the public’s respect if we legislate in this way. The most common thing one reads in the press in murder cases is that the wife or husband finds the other spouse in the sexual act, loses control, picks up a bread knife or whatever comes to hand and stabs and sometimes kills the other spouse. That is French-style crime passionnel. Are we now turning this into something that the English, with their stiff upper lip, will just take as an ordinary incident of marital life? That is ridiculous and out of line with the way in which people think about human passions. It is the one great terrible event that can happen in a married life and to say that it is to be disregarded makes nonsense of Clause 45 and the whole of the reform. That adds to my flame to get rid of these clauses altogether.
I rise briefly to support what the noble Lord, Lord Neill, has just said as I see that there are two clause stand part debates in this group and one which will follow shortly in relation to Clause 44.
Over the past 10 years, I have had to attend, as all practising barristers have, continuing professional development conferences, when the new law is explained to the criminal bar. Time and again, I have had people turn to me, look at me in disbelief and say, “How on earth did you let that pass through the House of Lords?” All I can say is that gallant attempts have been made that have not succeeded. However, if these clauses on provocation go through I shall not be able to show my face again there at all. The phrase “dog’s breakfast” would be a kindness.
The law of provocation is imperfect and difficult and is in a stage of development that makes it difficult for practitioners. I speak as someone who concluded a murder trial very recently in which just the sort of difficulties that have just been raised occurred. There clearly needs to be a radical change in relation to the whole law of murder, but to do it as it is being done in these clauses—I am not making a Second Reading speech—will make Parliament a laughing stock with the criminal bar. The complications are enormous, the scope for extending murder trials vast and the capacity for miscarriages of justice would be greatly increased if these clauses reach the statute book. I hope that when the time comes the Government will think again about them and listen to what has been said in this debate.
I had intended to develop my argument when we come to Clause 44 stand part and I had asked for that reason that it be separately grouped. Unfortunately, I was misunderstood and Clauses 45 and 46 have been put with this grouping when they should not have been. I am to some extent in your Lordships’ hands. I am very happy to develop the argument on Clause 44 stand part, as well as Clauses 45 and 46, although to some extent that will require repetition of what the noble Lord, Lord Thomas, has said. However, it has been anticipated by a number of noble Lords already, so perhaps I had better develop my argument at this stage. I am happy to do either.
We have grouped and regrouped and grouped again, and it is probably better if we take the amendments as they come, not least because that gives us a certain degree of order, although I understand entirely that the noble and learned Lord might have been seduced by the blandishments of those who have gone before him. I think that some degree of order may be necessary. I ask that we take the arguments in their place. In view of the fact that we have already been debating for 37 minutes, I shall have to give a detailed response in relation to all the amendments in this group. If we then merge it with a debate on another clause, I do not know when I shall sit down. I know that that is a very selfish thing to say, but I think that it is the reality.
I am very grateful to the noble and learned Baroness, but I am not sure that it makes much sense to approach it that way, because the general argument on whether Clause 44 should stand part has been developed already by two of my noble friends and the noble Baroness. It would seem preferable that I should develop the argument now.
Perhaps I may be of assistance to the Committee. Clauses 45 and 46 stand part are in this group. It might be helpful to take those separately but to take Clause 44 now, as it has already been detailed in some speeches and comes next in the groupings. Then noble Lords could speak separately to Clauses 45 and 46, but it is obviously the Committee’s decision.
I am happy to take that course. I start, as the noble Lord, Lord Thomas, did, with the present law of provocation, which must provide the necessary background to what is now proposed. I hope to show that the current law is fair and well understood by the judges, which is an important consideration, as well as being easily applied by juries. I shall then look, as the noble Lord, Lord Thomas, did, at the Law Commission report, published in 2006. Some of its proposals on provocation are controversial, as it accepted itself. But at least the proposals as a whole make sense and hang together, as one would expect. By contrast, the Government’s proposals, as set out in Clauses 44 and 45, are all over the place.
The most serious defect lies in their structure. However, that is not the sole defect. Much of the wording is unsatisfactory. What is a jury to make of the phrases, already referred to by the noble Lord, Lord Neill,
“circumstances of an extremely grave character”,
“a justifiable sense of being seriously wronged”?
Why should we exclude sexual infidelity from a jury’s consideration? Is Parliament really to say that sexual infidelity can never give rise to a justifiable sense of being seriously wronged? Surely not. That must be a question for the jury.
If we enact the two clauses in anything like their present form I foresee years of uncertainty and all to no benefit, or none that I can see. No doubt when the noble and learned Baroness responds she will explain what the benefits are. In the mean time, I take the view that we will be much better to stick to the law as it is.
What is the current law? The central concept is loss of self control. If the defendant had been so provoked by the victim as to lose his self control, the rigour of the law should on that ground be mitigated, provided a reasonable man in the defendant’s shoes would have done as the defendant did. So the objective part of the test is the test of the reasonable man. That is the test as was developed by the common law and is now confirmed by the Homicide Act 1957. The test, so simple at first sight, always concealed a difficulty. Suppose the defendant has some physical deformity. Suppose he is a hunchback, a cripple, or impotent. Would he not, if taunted, be more likely to lose his self control than a normal man without those deformities?
The judges directed juries that in applying the reasonable man test, which may to some extent answer the question of the noble Lord, Lord Campbell of Alloway, they were directed to assume that the reasonable man had the physical characteristics of the defendant but not the defendant’s capacity of self control. That last point caused difficulty but was finally decided after much hesitation by nine Law Lords in the case of Holley in 2005. Since that decision, the test whether a reasonable man with the defendant’s physical characteristics would have lost his self control and done as the defendant did has been applied in murder cases up and down the country without causing any problems. It is as certain as any test can be. It is fair to the defendant, whether man or woman, since the ultimate test is a question of fact left for the jury’s decision.
I turn to the Law Commission proposals, which also form the background to the current proposals. What it has done—this is the controversial part of its recommendations—is to recommend the combination of two separate concepts in a single partial defence. First, there is the defendant who is provoked by his victim and reacts in anger, as in the existing law. Secondly, there is the defendant who has suffered violence over many years at the hands of the victim and reacts not in anger but in fear. But those concepts are, in truth, inconsistent with each other. In the case of the defendant who reacts in anger, the key requirement is that he shall have lost his self-control. But in the case of the defendant who reacts in fear, loss of control has no place. The Law Commission recognised that crucial distinction and, in its recommendations, followed the logic of the argument and omitted any reference to self-control in the test.
I now turn to the Bill. The Government have accepted the Law Commission's suggestion that the partial defence should contain two separate strands—fear as well as anger—but they have rejected the Law Commission's view that loss of self-control has no place at all in such a scheme. Contrary to the Law Commission's recommendation, the Bill has restored loss of self-control to a central place in the scheme but says that loss of control need not be sudden. For the first time, we have the concept of a gradual loss of self-control, presumably to cover those who have killed in fear. But how does the judge explain a gradual loss of self-control to the jury? Take the case of the battered wife, who has suffered years of violence at the hands of her husband and then kills in cold blood. Is she entitled to the partial defence or not? If the answer is yes, how is the jury to reconcile that with Clause 44(4), which provides that a defendant is not entitled to the partial defence if he or she kills out of,
“a considered desire for revenge”?
If, on the other hand, the answer is no, and a battered wife who kills in cold blood is not entitled to the defence, why not leave the law as it is? If she kills in hot blood, she has a perfectly good partial defence under the existing law. Or, are we to contemplate some halfway house between anger and fear where the defendant's blood is neither hot nor cold, but lukewarm? Again, how is that to be explained to the jury? The attempt to include in the same defence both fear and anger has resulted in a mishmash, which is bound to confuse the jury and which will, if I am right, take many years for the courts to elucidate. Since the structure itself is defective, it cannot now be put right by amendment. We must get rid of the clause altogether and think again.
There are other defects, which I should mention. Clause 44(1)(c) contains a succinct, current account of what the objective test of the law now requires—the objective test of the reasonable man. Judges will have no difficulty in explaining that test as they always have, so why do we need “a qualifying trigger” at all? If Clause 44 is to become law, however, that is what is required. The judge will have to explain Clause 45(4)(a) and (b), which refer to,
“circumstances of an extremely grave character”,
“a justifiable sense of being seriously wronged”.
Having told the judge in one breath that the test is that of the reasonable man, as described, he must go on to say, “But only if the circumstances are extremely grave”. In truth, these two tests, in two different clauses, are inconsistent with each other.
Judges are always being told by the Court of Appeal that they must keep their directions as short and simple as they can. I can say only that, in my experience, directing a jury on the basis of these new clauses would be a nightmare. They are bound to lead to more appeals, just as the existing law of provocation has settled down. As the noble Lord has said so often, the Government ought to have reformed the law of murder as a whole, in the light of the current Law Commission report. They have failed to do so. Instead, we are being asked to tinker with a small part of that law, which at present is working well. I have quoted Professor John Spencer QC of Selwyn College previously in a different context. His comment on these proposals is very pithy:
“If this is the best the Government could do, it would be better to do nothing”.
We have had a very full and extensive debate. I too thank the noble Lord, Lord Thomas of Gresford, for the historical perspective from which he spoke to these amendments, and for his graphic description of them. I think he described them as “all nonsense and mangled”. The noble Lord has never knowingly understated his case and he has made no exception this afternoon. However, these amendments are unnecessary. Straight away, I say to my noble friend Lady Mallalieu that I hear her concern, but I believe that she will be able to go back into the Bar Mess with some comfort. I can assure her that the Bar Council has said that it welcomes the extensive consultation over other areas of the Bill, including the “loss of control” provisions. It says that it is clear that the consultation has led to a significant improvement. The way in which these provisions have been described is not necessarily entirely accurate.
We have heard a very clear exposition of Clause 44. It is right that Clause 44 sets out the criteria that need to be met for the new partial defence of loss of control to succeed. It needs to be read with Clause 45, which deals with the qualifying triggers for the partial defence. I say to the noble and learned Lord, Lord Lloyd, that the tests are not as inconsistent as he appears to find them. I have listened carefully to the arguments put forward, but I am certainly not persuaded at this stage that the clause should not stand part of the Bill. We accept that there are a number of stakeholders—individuals and groups—who would have preferred us to look at the Law Commission proposals as a whole. However, there are good grounds for reforming the partial defences to murder, irrespective of the wider reforms.
I refer back to what the noble Lord, Lord Thomas of Gresford, described as the “elegant amendments”, which we dealt with in his absence. The elegance of those amendments does not appear to have been quite appreciated by the Law Commission. An equally pithy response from Professor Jeremy Horder, the commissioner who had responsibility for leading extensive consultation on this for a long time, makes it clear that the new approach—which was advocated in those amendments—would be nothing short of,
“a betrayal of the consultees in this project: those consulted by us in 2003 and again in 2005, and when you consulted subsequently. They were all making suggestions on the assumption that the mandatory sentence would remain. It defies credibility to suppose that the Police Federation, ACPO, victims’ family groups, and others, would have engaged in the project in the way that they did had our proposals been centred on the removal or effective removal of the mandatory sentence”.
The relevant body, of course, had the advantage of many years of extensive consultation with everyone. Pithy responses are always to be enjoyed by all.
As regards the amendments in hand, concerns have been raised that the provisions in the law as it now is are not as clear as they should be. It seems to be generally accepted that we need to change and refresh them. The concerns are numerous; for example, that the defence may be too easily accessible to those who kill in anger and not sufficiently accessible to those who kill in fear. Although the courts have developed case law to accommodate this—as the noble and learned Lord has made clear—there is, in reality, no obvious place for killings in fear of serious violence in a defence designed for angry reactions. It is right that there should be a tailored response to these sorts of cases. A further concern is that where there is evidence of provocation, the defence must be put before a jury and there is no option for the judge to sift out unmeritorious cases, and there is a lack of clarity in judging how a “reasonable person” in a similar situation might have responded to the provocation. We are very familiar with all those concerns, which all need to be addressed.
However, underpinning all this is a more general but important policy shift. Simply put, we do not believe that in this day and age it is any longer adequate to treat violence as a justified response to anger and we wish to raise the bar in relation to the partial defence in order to reflect this. We have consulted very widely and considered the issues carefully. We are confident that the changes we propose will strengthen the law and provide more just and equitable outcomes in individual cases.
The Government recognise that the Law Commission’s recommendations for this important and extremely sensitive area of law are ambitious and wide-ranging. It is critical that we get this right. Therefore, we announced as far back as December 2007 our intention to proceed with reform of the law on a staged basis. As I mentioned on a previous occasion, we will be looking at the commission’s other recommendations, particularly those for a new structure for homicide in due course and in the light of the effect of any changes arising from this stage of our work. Meanwhile, we believe that there are good grounds to reform the partial defences to murder irrespective of the wider reforms.
In the case of the existing partial defence of provocation, the Government are persuaded that it is capable of being too generous to those who kill in anger, and we want to change the law to address this. This is a deliberate and carefully considered shift in policy. We are saying that in this day and age, people can and should be expected to manage their anger, whatever it stems from, without resorting to killing. However, we also believe that there are some extremely grave circumstances where killing in anger should be able to justify reducing a charge of murder to manslaughter. Conversely, because the law is historically designed to cater for anger killings, it is not sufficiently tailored to killings which are in response to fear. We are making changes to rectify this.
Clauses 44 to 46 address these concerns by abolishing the partial defence of murder due to provocation and replacing it with the new partial defence which is available in a limited set of circumstances where a defendant kills as a result of loss of self-control attributable to one of the following triggers. We have gone through them but it important to remind ourselves of them. I refer to a fear of serious violence, things said or done that cause the defendant to have a justifiable sense of being seriously wronged and constituted circumstances of an extremely grave character, or a combination of the above. Given this background, the noble Lord, Lord Kingsland, will not be surprised to hear that the Government cannot support Amendments 169A and 169E. They would make it possible for defendants to raise the partial defence of provocation in circumstances where things said or done caused the defendant to have a “justifiable sense of being wronged” as opposed to a,
“justifiable sense of being seriously wronged”.
Clause 45(4) provides that the partial defence will be available where the defendant loses self control due,
“to a thing or things said or done (or both) which … constituted circumstances of an extremely grave character”,
and caused the defendant,
“to have a justifiable sense of being seriously wronged”.
We, too, looked at this matter and initially considered doing without this limb on the basis that killing in anger is almost never even partially excusable. However, the Law Commission provided examples of when such a defence might be appropriate.
By way of illustration, one possible scenario might be where a refugee is living in the United Kingdom. One day he unexpectedly encounters an individual he recognises as being part of a war party that had rounded up the people in his village and locked them into a church that was then set alight. He verbally challenges the individual, who laughs in his face and starts describing details of the attack that resulted in the death of all of the man’s family. The man picks up a nearby chair and attacks the man, resulting in his death. We consider that the words and conduct limb of the partial defence needs to be included in this kind of extremely grave example, where the defendant would have a justifiable cause to feel seriously wronged. We remain of the view that the partial defence should succeed only in the gravest of circumstances. The phrase,
“a justifiable sense of being seriously wronged”,
strengthens that aim and the Government therefore are not able to accept the amendments. I appreciate that the noble Lord was seeking an indication of how we put it.
We do not believe that it is otiose. There has to be a benchmark that regulates this. We think that the “seriously wronged” emphasis is in the right place. I also remind the Committee that the,
“justifiable sense of being seriously wronged”,
is in line with the Law Commission’s recommendations, which came after very extensive consultations. That is why I say that we were not initially attracted by this approach. However, from the research that the Law Commission did and the approach that it took, we were convinced that this was a responsible and reasonable response to the experience that it had culled from the work that it had undertaken. We were clear that it would be wrong to disregard its advice and the work that had led it to that conclusion, with which we then concurred.
Amendment 163A would add the words “gross provocation” to Clause 44(1)(b). This amendment would add a new element to the test of both limbs of the partial defence. I can see how the noble Lord, Lord Kingsland, might wish to revert to the more familiar language of “gross provocation”. Let me begin by reassuring him that the ground covered by the Law Commission’s “gross provocation” recommendation in relation to things said or done is already reflected in Clause 45(4). “Gross provocation” was no more than the label that the Law Commission used for the limb of the partial defence covered by that clause.
More significantly, the Government do not believe that it would be appropriate to apply a “gross provocation” requirement to the “fear of serious violence” limb of the partial defence; the amendment would apply the requirement to that limb as well as the one relating to things done or said. In creating the “fear of serious violence” limb, we are specifically seeking to better tailor the law to cases where a person kills in fear than at present. Adding a “gross provocation” requirement to the test for fear of serious violence would reintroduce some of the problems we seek to address through these reforms. In particular, it would again result in killings committed in fear needing to be shoehorned into a partial defence designed for killings committed in anger. Including that additional requirement would inevitably make it significantly harder for a plea based on fear of serious violence to succeed. It would also be inconsistent with the focus of the “fear of serious violence” limb, which is on what the defendant feared in the future rather than just what occurred in the past.
Amendment 164A seeks to remove “considered” from the reference to “considered desire for revenge” in Clause 44(4). The effect would be to narrow the circumstances in which the partial defence of loss of control might succeed, so that any situation where the jury found that there was a desire for revenge would be ruled out. The Government remain firmly of the view that revenge killings should not be able to benefit from the partial defence of loss of control. However, removing the requirement that the loss of control must be sudden potentially widens the scope of that partial defence in such cases. It is therefore necessary to create some provision to ensure that revenge cases, such as gangland killings where the defendant was plotting to kill the victim, do not benefit from the partial defence.
By referring to a considered desire for revenge, we are taking up the recommendation from the Law Commission, which observed that a person who acts in considered desire for revenge is rightly to be distinguished from someone who acts on impulse or in fear or both. We seek to capture those instances where the defendant has gone beyond simply experiencing a range of emotions—that was described earlier—to a place where they have reflected and chosen to act in revenge. The form of words strikes the right balance by barring thought-out revenge killings without automatically excluding cases where revenge may play part of a more complex range of emotions. It will of course be down to the jury in the end to determine whether the partial defence should succeed on the facts of the case.
Amendments 163 and 164, in the name of the noble Lord, Lord Thomas of Gresford, would remove the requirement for loss of self-control and the specification that that loss need not be sudden. It is important to retain that requirement, which is in the current law of provocation, because it ensures that the defence cannot succeed where the defendant kills “in cold blood”. Of course I listened with great care to what the noble and learned Lord, Lord Lloyd, said about lukewarm blood and the difficulty that arises. A number of amendments have been tabled to remove the requirement for loss of self-control from the partial defence, but it would be wrong to allow a defence for murder to someone who kills when they are in full control of themselves—unless of course they meet the criteria for the full defence of self-defence, or the partial defence of diminished responsibility.
The clause makes it explicit that the loss of self-control need not be sudden for the partial defence to succeed. This allows for situations where the defendant’s reaction has been delayed or builds gradually. As your Lordships will be aware, this is often the case where the defendant has been subject to long-term abuse—which has been referred to—at the hands of their partner who they eventually kill.
I am aware that some people have argued that loss of control is by definition sudden. However, the evidence that we have looked at does not bear that out. There are real-life examples of a time lapse between the event that triggered the loss of self-control and the actual loss of self-control, or cases where a loss of self-control has taken place as a result of the cumulative effect of a number of events. We are talking here of cases where the loss of self-control does not necessarily manifest itself in an instant and explosive way, but neither could it be said that the defendant acted in cold blood. We very much based that on the analysis that has been undertaken by the Law Commission. Although it is a requirement under the current law of provocation that a loss of self-control must be sudden, case law has developed over time to deal with this very issue. The result is that, currently, the partial defence might still apply where there is a delay between the provocative incident and the killing. However, reaching this point has required a particularly strained interpretation of “sudden”, which in reality was designed to cater for immediate angry reactions to provocation.
Our clause is designed to ensure that cases are not automatically ruled out just because the loss of control has not been sudden, but it will remain open for the judge, in deciding whether to leave the defence to the jury, and the jury, in determining whether the elements of the defence are satisfied, to take into account any time delay. This strikes the right balance between ensuring that the defence cannot succeed where the defendant kills in cold blood, while allowing for situations where the defendant’s reaction has been delayed or where it builds gradually. We think that that is a just compromise.
This leads me to Amendments 168A, 169B and 169C, which seek to restrict the time between the trigger to the loss of self-control and the killing. I understand and sympathise with the noble Lord, Lord Kingsland, and others in what they are seeking to achieve through the amendment, but I hope that I have made it clear why we are unable to agree with it.
Amendment 165 relates to an issue raised by Professor Jeremy Horder of the Law Commission who appeared to be concerned about the assumption in Clause 44(5) that the defence is satisfied unless proved otherwise by the prosecution. Professor Horder offered the example of a defendant seeking a full acquittal on the grounds of self-defence. He suggested that in such a case, the prosecution might be tempted not to rebut the defence so that the defendant would be convicted of manslaughter rather than found not guilty. In considering such a scenario, it is important to be clear about the purpose of this provision.
All that subsection (5) of Clause 44 does is to clarify where the burden of proof lies when the partial defence of loss of control arises in the case. The subsection makes clear that where sufficient evidence of the partial defence is adduced within the meaning of subsection (6), the burden rests on the prosecution to disprove the defence to the usual criminal standard of proof. The position reflected in the clause is commonly the position within the criminal law. The same position in respect of the burden of proof applies now to the partial defence of provocation and the full defence of self-defence. Bearing in mind that we are replacing the current partial defence with a new one, we consider that it is helpful in the interests of clarity and certainty to make it plain in the clause where the burden of proof lies.
Amendment 165A deals with a related point. The usual position where the evidential burden applies is that the judge should leave to the jury any defence that it may reasonably find to apply on the evidence heard at the trial, regardless of who has raised it. The amendment would therefore be contrary to the usual position, and we see no good reason to shift the boundary.
As regards Amendment 168, the Government are confident that the current formulation captures the right cases, and I am therefore afraid that the amendment would dangerously widen the partial defence. I am confident that that is not what the noble Lord wishes. I will take as an example the case of a young woman who is conducting a secret affair with an individual who she knows her family considers unsuitable. The woman is discovered by her mother. The mother does not represent a threat to her daughter, but says that she will inform her father. The daughter, fearing serious violence from her father, who does not know of the affair and is not present, kills her mother. Removing the link between the fear of serious violence and the victim would allow the daughter to claim the partial defence, provided that the other criteria for the defence were met. No matter how unfortunate the circumstances of the defendant, we do not think that it is desirable or appropriate to widen the defence to this extent.
Amendment 169 seeks to remove the requirement that the things done or said, or both, to which the loss of self-control is attributable, must constitute circumstances of an extremely grave character. We cannot accept these changes, which would lower the bar and make the defence easier to argue. This is contrary to our stated policy of narrowing the defence and making its use more difficult for those who should not properly take advantage of it.
Amendments 169D, 169F and 169G are also contrary to the Government’s aim of preventing people from relying on the partial defence where the qualifying trigger was caused by something that the defendant incited another to do or say. We do not want it to be possible for the defendant to use things said—for example, verbal threats—as the basis for their fear of serious violence.
Finally, I will mention briefly the two government amendments in the group. We have identified the need to amend a reference in Schedule 21 of the Criminal Justice Act 2003 to the partial defence of provocation. This is a necessary minor consequential amendment to bring Schedule 21 into line with proposals in the Bill.
I hope that I have persuaded the noble Lord, Lord Thomas of Gresford, of the virtues of our approach to the new partial defence of loss of control, and I hope that he will consider withdrawing his amendment to Clause 44. I apologise for taking some time, but the amendments were extensive in number and in detail.
The noble and learned Baroness the Attorney-General did not mention the fact that juries control the situation in a murder trial where the provocation defence is run. They set the standard, and it changes over the years as people’s views change. I am sure that, 30 or 40 years ago, catching the spouse in flagrante delicto was treated as a much more aggravating feature than it might be today. I use that example to show that there is a change in society, and that the common law—and juries—adapt to it. It may be the case today that, if provocation were argued on the basis of adultery, it would not receive the same response as it would have done many years ago. The defence may be run, but would it succeed? It is for the jury to determine issues of that sort.
The noble and learned Baroness objects to my reference to mangling. If you say that a loss of self-control need not be sudden, you are forcing the English language into an area where it cannot go. A loss of self-control is sudden or it is not a loss of self-control. Let us suppose that a wife is dissatisfied with her husband’s conduct towards her. It may not be serious violence, as suggested in Clause 45(3), but let us suppose that she administers poison to her husband slowly over a period of months in response to a fear of violence—perhaps she is knocked about. Could it possibly be said that over that time she is losing self-control, or would it not be said that that is a determined and considered way of killing her husband? One then has to ask the question: in that situation, should she be sentenced to mandatory life imprisonment when she has been the butt of violence in the home? The answer must be no.
My point is that the whole concept of provocation was developed over centuries as a response, first, to allow some mitigation to the mandatory death sentence and that now it is used in response to a mandatory sentence of life imprisonment. It continues to alleviate the situation where a jury thinks it is just so to do. If we abolish the mandatory life sentence, either by the way suggested by the noble and learned Lord, Lord Lloyd, in his Amendment 150A last week, or as a matter of policy, and the judge were left to assess what is the appropriate sentence, which he does at the moment in any event, then we would not need the concept of provocation at all. If the Government want to alter the law of murder, they should seize this chance to get rid of the whole concept of provocation, deriving as it does from a completely violent society which has now gone.
Although I say that today the judge decides, in effect, what the sentence will be, that perhaps puts it a little high. A life sentence does not mean a life sentence: there are perhaps 30 to 35 people in prison on whole-life sentences. The judge will determine the tariff he thinks appropriate and leave the Parole Board to assess the risk that arises after that. So although the judge already has a very considerable input into the length that a person spends in prison, and he has discretion about what tariff to announce, but he does not have the final say.
The whole idea of provocation of reducing murder to manslaughter is out of date. I can take the noble and learned Baroness to the various details. I am grateful to those speakers who have pointed out some of the anomalies and the infelicitous drafting, but basically we should get rid of these clauses altogether and ensure that when homicide is to be amended, it is amended as a whole and not partially, as is suggested in this Bill. No doubt we shall continue to consider and discuss these matters. For the moment, I beg leave to withdraw the amendment.
Amendment 163 withdrawn.
Amendments 163A to 166 not moved.
Amendment 167 had been withdrawn from the Marshalled List.
Debate on whether Clause 44 should stand part of the Bill.
Clause 44 agreed.
Clause 45 : Meaning of "qualifying trigger"
Amendments 168 to 169G not moved.
170: Clause 45, page 29, line 19, leave out paragraph (c)
I have already made my criticisms of the expression “sexual infidelity”. What is meant by that? Does it mean only between married partners, does it mean between a man and a woman, or a man and a man? How is that to be defined? It is such an imprecise term. Does it cover the situation of the case to which I referred earlier, in which my noble friend Lord Carlile and I were involved? What is it supposed to cover? This is a probing amendment, seeking clarification of this expression. I beg to move.
I wholly endorse what the noble Lord, Lord Thomas of Gresford, has said, and I await the response of the noble and learned Baroness, Lady Scotland.
I hesitated in standing in case I was a little too quick again. Of course I understand what has been said by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. The Government understand that these issues change over time, and hear very clearly what the noble Lord, Lord Thomas, said about the approach that people have historically taken to infidelity, and how that may well have moved on. We understand that there are many situations where passions run high and where people feel a strong sense of having been wronged, especially within close personal relationships. We accept that these situations may have a devastating impact on the individuals involved. In this day and age, whatever the views may be about that, we want to put beyond peradventure that this cannot be the basis upon which one should seek to take another’s life.
We believe that these are circumstances that people need to be able to deal with without resorting to violence. This is particularly the case where sexual infidelity is concerned. The history of the partial defence of provocation has led to a commonly held belief that it is a defence which can be abused by men who kill their wives out of sexual jealousy and revenge over infidelity. Indeed, it may be the other way around, when women kill their husbands because they have betrayed them with another woman—particularly if that other woman had at some stage been befriended by them. This erodes the confidence of the public in the fairness of the criminal justice system.
Even accepting that a great deal has been done in recent years to address this problem, and that pleas of provocation on the basis of sexual infidelity generally do not succeed, it is still true that, under the current law, the defence can be raised and could technically succeed. We want to make it clear in the Bill that this can no longer be the case, and that it is unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred. It is important to correct a misconception here. By doing this, we are not saying that people are not entitled to feel upset and angry at a partner’s unfaithfulness: we are concerned here with a partial defence to murder and the circumstances in which it is appropriate to reduce liability for murder to that of the less serious offence of manslaughter. We are saying that killing in response to sexual infidelity is not a circumstance in which such a reduction can be justified.
The onus on those who seek to remove the provision from the Bill is to explain why it is believed that the killing of one person by another simply because the victim had been unfaithful is grounds for reducing a murder conviction to manslaughter. I understand that neither noble Lord is suggesting that it should. Therefore, I argue that the clarification is helpful because it simply states that which many believe is now and should be the case in relation to murder and killing on that basis.
Infidelity has a very wide range. There can be the casual affair, where there is a feeling of disappointment; or there can be a breach of trust between partners where there has been a lengthy marriage, where there has been concealment, where one or other of the partners is disabled, and so on. It can be something that moves people to the depths of their being—that their partner should be in such a breach of the trust that has been imposed on them and is unfaithful in those circumstances. If the Government want to maintain the defence of provocation, and to maintain it on the basis of the loss of self-control—which is fundamental to the concept—I fail to see why a loss of self-control caused by a deep breach of trust and unfaithfulness should be any less a reason for reducing murder to manslaughter than any other form of provocation that may be advanced. It is fundamental.
Looking back in history, one sees that that was one of the four reasons determined in 1709 and based on earlier common law provisions. Adultery was one of the reasons then for provocation. I do not want to go back to those days; I do not want to go back to provocation; but if we are to base the law on loss of self-control, how can we exclude the deepest feelings and passions, the breach of trust and breach of faithfulness, from our considerations?
The important point that the noble and learned Baroness makes—she agrees with me on this—is that today a defendant would be fortunate to succeed on the basis of infidelity alone. Standards have changed, the sense of trust has changed. Today, a defence of provocation based simply on infidelity without a deeper and broader background would not succeed. Why not? Because juries come from the world we live in, and they are the people who assess the degree to which a person has been harmed and the degree to which that person can be excused from the consequences of a murder conviction—that mandatory life sentence—by reason of the passions that have been unfairly stirred up inside them.
I do not accept the reasoning that the noble and learned Baroness has put forward, and I have no doubt that we will return to this at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment 170 withdrawn.
Clause 45 agreed.
Clause 46 agreed.
Clause 47 : Infanticide (England and Wales)
171: Clause 47, leave out Clause 47 and insert the following new Clause—
“Infanticide (England and Wales)
Section 1 of the Infanticide Act 1938 (c. 36) (offence of infanticide) is repealed.”
At the request of my noble friend Lady Murphy and with the permission of the Committee, I am moving Amendment 171 and speaking to Amendment 172. The amendments were tabled by my noble friend, who is sorry that she cannot be here this afternoon.
Clauses 47 and 48 make purely technical amendments to the offence of infanticide, which is effectively retained unchanged by this Bill. Amendments 171 and 172, on the other hand, would abolish infanticide completely both as an offence and as a partial defence to murder in England, Wales and Northern Ireland.
The Infanticide Act 1922 effectively abolished the death penalty for a woman who deliberately killed her newborn child while the balance of her mind was disturbed as a result of giving birth, by providing partial defence to murder. The sentence that applies, as with other partial defences to murder, is the same as that for manslaughter. The Infanticide Act 1938 extended this defence to mothers the balance of whose mind was disturbed at the time of the act or omission by reason of not having fully recovered from the effect of giving birth or by reason of the effect of lactation consequent on giving birth. Before the partial murder defence of diminished responsibility was introduced into UK law by the Homicide Act 1957, this provided an important means of selecting a more appropriate sentence for a mother found guilty of killing her infant child than the mandatory life sentence or death penalty applying to murder at the time.
In recent years, however, it has become rare for a mother who kills her infant child to receive a custodial sentence, except in exceptional circumstances. As a result, the provisions on infanticide here and in other jurisdictions have been the subject of criticism. For example, the 1975 Butler committee, the Law Reform Commission of Canada and the New South Wales Law Reform Commission have all recommended the abolition of infanticide. The Royal College of Psychiatrists in this country, too, believes that the offence or defence of infanticide should be abolished, with cases that would otherwise come under that offence being dealt with through the defence of diminished responsibility.
The arguments for abolition are fourfold: first, the doubt as to the biological basis of post-partum disorders, along with the evidence suggesting that external factors play as much of a part; secondly, the overlap with the defence of diminished responsibility; thirdly, the evidence that the majority of post-partum mood disorders do not impair mental functioning; and, fourthly, if we accept that mental disorders in carers are often not biologically based but associated with social and economic factors, the lack of logic in confining infanticide to natural mothers of children under 12 months. Arguments for retaining infanticide include the attraction of a defence that recognises the experience of women, the advantages of having an offence with which women may be charged, rather than relying on the defendant to raise the defence of diminished responsibility, and fears of an increase in sentences passed on infanticide offenders if they are sentenced as manslaughter offenders.
I turn first to the arguments for abolishing infanticide. What is the cause of post-partum disorders? Is it biological or something else? The existence of post-partum disorders such as the maternal blues, post-partum depression and post-partum psychosis is not in dispute. There is considerable debate, however, about the cause of such disorders, with little evidence to show that they are caused primarily by hormonal or chemical imbalances. In the case of the maternal blues, factors such as lack of sleep, the social situation, economic factors and general stress are the main influences. In the case of post-partum depression and post-partum psychosis, pre-existing mental illness may be exacerbated by the birth and care of a baby.
The symptoms of post-partum depression are no different from those of other forms of major depressive or psychotic illness. In rare cases—one in 1,000 births—where a sudden psychosis develops after birth, there is some evidence that a sudden change in hormones after birth may be a contributing factor. Since one in 25 women who have puerperal psychosis kill their babies, it is crucial to pick this condition up early. However, most of the women who come before the courts for infanticide do not fall into this group; they fall fairly and squarely into other categories. For example, the mother of Baby P, who was older than 12 months, would characterise one group, and the young schoolgirl who gives birth in secret and then kills the child in a desperate panic after birth would be another. This latter group tends to be mentally normal. If there is going to be an infanticide defence, it should surely be based on the operative socio-economic factors, not on antiquated beliefs about the link between women’s biology and their degree of criminal responsibility.
The reference in the definition to lactation is, frankly, archaic and has no basis in medical science. Hormonal changes may play a part in the post-menstrual period and at the menopause, as has often been argued in court, but we do not have separate legislation to deal with them. On the other hand, since socio-economic factors are not otherwise used to excuse people from criminal responsibility, there seems to be no good reason for retaining infanticide. Many researchers would agree that all three types of post-partum disorder are associated with multiple factors: psychological factors, such as low motivation for pregnancy and low level of psychological health; and demographic factors, such as socio-economic status, stress and psychiatric and genetic predispositions. It would appear that biological factors cannot be blamed for any but a small minority of cases, but rather a combination of external and internal factors. Lactation does not figure anywhere.
It is questionable whether the defence should be based on medical criteria at all. Does this not lead to the unjustified exclusion of social, psychological and economic factors as valid bases for a defence? Women who kill their children and attempt to kill themselves are usually living difficult lives with violent or absent spouses, financial difficulties, a handicapped child, fear of the spouse sexually assaulting the child or fear of losing custody of the child. By relying simply on the medical to the exclusion of social factors, we force psychiatrists to distort their diagnoses in order to conform to the requirements of legislation. In a word, if the killing was committed as a result of an abnormality of mind, it is covered by the defence of diminished responsibility; if it was not, a quasi-psychiatric or pseudo-psychiatric defence is not appropriate.
There is the issue of how to deal with young girls who kill their newborn infants within 24 hours of a secret birth. Establishing an abnormal mental state in retrospect may be hard indeed. Would it not be more honest to stop pretending that such cases were the result of childbirth itself or that it was hormones that drove the mother to it? I remind the Committee that if Amendment 150A, tabled by the noble and learned Lord, Lord Lloyd of Berwick, were accepted, there would be extenuating circumstances to cover this kind of case.
If it is accepted that factors other than hormonal imbalances are involved in the killing of young children, the question arises of whether it is appropriate to limit the defence to natural mothers. In over 50 per cent of cases of child killings, men are responsible, most commonly the stepfather of the child. The reasons given for such killings are often similar to those given by natural mothers: uncontrollable crying, pent-up frustration with the child, difficult economic circumstances and so on. If the test is changed in relation to mothers and broadened beyond mere medical factors, should it not also apply to fathers? Would that extend the test too far? What about stepmothers or women who adopt children?
At this point, it is pertinent to question the ideological basis of infanticide, although I would feel more comfortable if the noble Baroness, Lady Murphy, were making this point. Women are given special treatment by way of gender-specific law, based on the notion that they are naturally susceptible to mental instability as a result of giving birth. Arguably this conveys a stereotype of women as inherently unstable because of their biology. Infanticide may benefit individual offenders, and one is sympathetic to that, but it is pertinent to question the wider implications of a law that makes special concessions for women based on a notion of inherent disability.
The defence of diminished responsibility does not contain the same problem as it does not single out women on any notion of a particular vulnerability to mental illness. As the Law Commission has said, to accord a special defence to women seems to be based on an idea that any woman who is mentally unwell and who commits what would seem to be the ultimate maternal crime of killing her child must have done so because of her state of unwellness. Otherwise, how could a mother kill her own child? However, such a presumption would be medically wrong and no different from the organic cerebral consequences of epilepsy, for example, in men, who cannot benefit from a special defence.
I turn to the arguments for retaining infanticide. The first turns the last argument on its head and maintains that there are advantages in recognising women’s experiences by way of a gender-specific offence or defence. It is suggested that, if infanticide were subsumed under the defence of diminished responsibility, the special problems faced by women with children would cease to be recognised by way of a separate offence or defence; the defence of diminished responsibility would focus attention on an individual woman’s mental state rather than on the special pressures commonly experienced by women that may have led to their mental state.
It is also argued that there may be procedural advantages in being able to charge a woman with infanticide rather than with murder and shifting the onus on to her to raise the defence of diminished responsibility. Achieving a proper reduction in conviction is not then reliant on the defendant’s co-operation, as it is with diminished responsibility, where only the defendant can raise the issue. That can be important when a defendant is in denial and will not allow her legal advisers to put forward a psychiatric defence or submit to a psychiatric examination, which she perceives as designed to prove that she did kill her child. However, it is believed that this more general problem relating to diminished responsibility should be solved by changing the rules so that that defence could be raised not only by the defence but by the Crown or the judge, as with insanity. Rather than retaining infanticide to avoid this problem in a small number of cases, infanticide should be subsumed under diminished responsibility and the rules about raising that defence altered. In any case, in the majority of cases infanticide is used as a defence rather than an offence and the prosecution always has the option of accepting a plea of guilty to manslaughter where a woman is charged with murder and there is clear evidence of mental disturbance.
Lastly, it is argued that there are disparities between the sentences passed on those found guilty of infanticide and those found guilty of manslaughter and that infanticide should be retained because, if it were abolished, sentences imposed on women who kill their children would increase. However, manslaughter attracts a wide range of sentences and courts have a wide discretion to impose a non-custodial sentence for manslaughter where this is appropriate in the circumstances of the individual case. I simply do not believe that the courts would deal differently or less sympathetically with women in this situation if the charge were manslaughter rather than infanticide. If this is wrong and current sentencing guidelines prove inadequate to cover the range of circumstances in which diminished responsibility applies so as to include infant killing, I presume that the guidelines could be modified.
It seems that the clear balance of the argument lies in favour of the abolition of infanticide rather than its retention. The Law Commission, in its report of November 2006, recommended no change simply, I believe, because the consultees could not agree on a satisfactory alternative. However, the 1938 Act does not reflect modern medical or legal thinking and we should surely try to do better. I beg to move.
I thank the noble Lord, Lord Low, for speaking to the amendment so comprehensively on behalf of the noble Baroness, Lady Murphy. I will take his last point first. He said that we should be able to do better. The truth is that, after extensive examination, it is not possible. I am grateful to the noble Lord for outlining the history of these offences, which go back as far as 1938. It is true that we are asked to grapple with this difficult and delicate issue about once a year. The impact of the legislation as currently framed is such that the Law Commission came to the view that the infanticide offence as currently drafted works and does so effectively.
I know that the noble Baroness, Lady Murphy, has argued as cogently as the noble Lord, Lord Low, has argued today that such cases could be dealt with under diminished responsibility instead. However, the Government are concerned that diminished responsibility would not provide an adequate response to all those cases. In particular, I am thinking of those mothers—often very young, as the noble Lord indicated—who kill their babies in a transient but highly disturbed state of mind after a clandestine birth and, in those very particular circumstances, might struggle to meet the evidential requirements of diminished responsibility.
The Law Commission looked at the issue carefully and concluded that it was right to retain the offence. We concur. The amendments that we have made carefully respond to the judgment in the case of R v Gore. We think that they enable a tightening of the loophole that was created in that case. Regretfully, I do not believe that we can do better than the legislators in 1938. It is a comfort for me to say that we do not intend to change this, although we will continue to look at it as time goes on.
Given the response of the Attorney-General, I shall beg leave to withdraw the amendment. I will consider with my noble friend Lady Murphy whether we wish to return to the matter on Report. Although we have clearly pointed out the need to do better, we have not yet done better than anyone else in saying what that should be. The correct course, as the noble and learned Baroness suggests, is to keep the matter under review for the time being. I beg leave to withdraw the amendment.
Amendment 171 withdrawn.
Clause 47 agreed.
Clause 48 : Infanticide (Northern Ireland)
Amendment 172 not moved.
Clause 48 agreed.
Clause 49 : Encouraging or assisting suicide (England and Wales)
Amendment 172A not moved.
Clause 49 agreed.
173: After Clause 49, insert the following new Clause—
“Acts not capable of encouraging or assisting suicide
(1) An act by an individual (“D”) is not to be treated as capable of encouraging or assisting the suicide or attempted suicide of another adult (“T”) if—
(a) the act is done solely or principally for the purpose of enabling or assisting T to travel to a country or territory in which assisted dying is lawful;(b) prior to the act, two registered medical practitioners, independent of each other, have certified that they are of the opinion in good faith that T is terminally ill and has the capacity to make the declaration under subsection (2); and(c) prior to the act, T has made a declaration under subsection (2).(2) A declaration by T is made under this subsection if the declaration—
(a) is made freely in writing and is signed by T (or is otherwise recorded and authenticated if T is incapable of signing it),(b) states that T—(i) has read or been informed of the contents of the certificates under subsection (1)(b), and (ii) has decided to travel to a country or territory falling within subsection (1)(a) for the purpose of obtaining assistance in dying, and(c) is witnessed by an independent witness chosen by T.(3) “Independent witness” means a person who is not—
(a) likely to obtain any benefit from the death of T; or(b) a close relative or friend of T; or(c) involved in caring for T.(4) D is not to be treated as having done an act capable of encouraging or assisting the suicide or attempted suicide of T by virtue of being with T when, in a country or territory falling within subsection (1)(a), T takes steps (including steps taken with the assistance of D) to commit suicide by lawful means.”
It is not a crime to travel abroad to be assisted in dying in a country where assisted dying is lawful. Nobody proposes to change that position, either by amendment or suggestion, in this Bill. However, it is thought to be a crime to accompany your loved one to such a country abroad for assisted dying, and the maximum sentence for such a crime is currently 14 years. I say “thought to be” because, although the Court of Appeal in the recent case of Purdy proceeded on the basis that it was a crime, and the counsel representing the Director of Public Prosecutions and that representing Mrs Purdy accepted that it was a crime, in an appeal to the Judicial Committee of this House a point has been raised by the Law Lords to the effect that it might not be a crime. That matter is currently being debated before the Judicial Committee of this House. We have to proceed on the basis that it is a crime, because that is the latest ruling of the higher courts.
We know that in the past seven years, 115 people from this country have gone to Switzerland for an assisted suicide. Some of them have been investigated by the police, while some of those cases have been considered by the Director of Public Prosecutions. In none of the cases has a prosecution been brought under Section 2 of the Suicide Act 1961, despite the fact that the Director of Public Prosecutions has made it clear that he has considered in a number of cases that the evidential requirements of the Act have been satisfied. Nobody wishes to prosecute in those cases, because nobody, in my view correctly, has the stomach to prosecute in cases of compassionate assistance. The attitude of the police and prosecution authorities means that they have, for entirely understandable reasons, created a legal no man’s land. The consequence is that there is no clarity.
The lack of clarity has a number of bad effects. The first bad effect is that some people do not allow their loved one to accompany them to a country where assisted dying is lawful, because they fear that after their death, their loved one may be investigated and prosecuted. With respect to them, I mention Mr and Mrs Syd Robbins, who had been married for 34 years. Mrs Dorothy Robbins had motor neurone disease; she travelled to Switzerland for an assisted dying and went alone, refusing to allow her husband, Mr Syd Robbins, to accompany her for fear that he would be prosecuted. There is no suggestion that that case was anything other than one of compassionate assistance. The problem that Mr and Mrs Robbins faced is the same problem that Mrs Purdy has faced, which is why she has brought proceedings, so far unsuccessfully, up to and including the Court of Appeal, to seek some indication that her partner, if he accompanies her to Switzerland for an assisted dying, will not be prosecuted.
There is, in my respectful submission, something wrong with a law that is never enforced, but has the effect of depriving people of the compassionate assistance that I believe every single Member of this House, including those who have written letters to the newspapers about this, would think these people were entitled to. The problem goes further than that. The second problem is that the current law offers no safeguard for those who go for an assisted dying mistakenly believing that they are more ill than they are. Looking at five of the cases where people have gone to Switzerland, it has transpired that people in great distress and in great pain had in fact been suffering from such conditions as bad back pain or diabetes and had no underlying terminal condition. Because the law provides no safeguards whatever at the moment, no doctor had ever looked at those cases in the United Kingdom and the consequence was that those people went without any consideration of their medical condition.
The third problem in the law as currently enforced is that there may be cases of abuse—what the noble and learned Lord, Lord Mackay of Clashfern, and those who wrote to the Times referred to as “malicious encouragement to suicide”. That is something we would all wish to stop. Currently, the only safeguard in that respect is the fear of prosecution. My amendment would not remove the fear of prosecution in those cases. Instead, it would add further safeguards. I say “my amendment”, but the proposal that we make in our amendment is as follows. It should not be a crime if you accompany someone to a country where assisted dying is lawful if the sole purpose of your accompanying them is to assist them in going to the place where assisted dying is lawful. Two medical practitioners must have certified that the person you are accompanying is suffering from a terminal illness and those same two medical practitioners must have certified that the person going has the capacity to make a declaration to the effect that the medical certificates have been read by them or to them and that they freely wish to go for an assisted suicide.
A number of points have been made about these safeguards. In an incredibly well written article in the Daily Telegraph this morning, the noble Lord, Lord McColl, said that doctors do not want to have anything to do with it. No doctor would be forced to have anything whatever to do with this if they did not want to. However, if a defence is to be made that can be relied on, it would require that two doctors independent of each other had certified that someone was terminally ill. That is two doctors more than look at the matter currently.
The second point that has been made in relation to the safeguards proposed is that our amendment contains no definition of terminal illness. I am prepared to leave it to the good sense of two doctors as to whether or not someone is terminally ill. I am more than happy to listen very closely to the views of this House about whether that is the right approach. By terminally ill, I mean something along the lines of the definition contained in the 2006 Palliative Care Bill of the noble Baroness, Lady Finlay, which states that,
“terminal illness” means an illness, disease or condition which—
(a) is inevitably progressive and fatal, and
(b) the progress of which cannot be reversed by treatment”.
The third point is how you deal with the passage of time after the granting of the declaration by the person. I thought very carefully about that before the drafting of the amendment. It is implicit in my amendment and that is why I did not think it was necessary to say that the safeguards—namely, the certificate of the two doctors and the declaration by the person travelling abroad for an assisted suicide—apply to the act of going abroad and having an assisted dying. Otherwise, there would of course be no point whatever in the safeguards. I believe that to be implicit, and that the courts would unquestionably construe the amendment in that way.
The fourth objection to the safeguards is there being no definition of capacity. Remember—one of my safeguards is that the person making the declaration must have the capacity to do so. My reason for not including a definition of capacity is that, as many noble Lords will remember, comparatively recently Parliament passed the Mental Capacity Act, which would without much doubt apply here. For the avoidance of doubt, I draw your Lordships’ attention to the fact that Section 62 of the Mental Capacity Act says that the reference to capacity in the Act does not apply to murder, manslaughter or Section 2 of the Suicide Act 1961. Again, I considered that before tabling the amendment and took the view that it was obvious, as a matter of drafting, that that section would not apply to the amendment. I would very much welcome noble Lords’ views on that.
The reason that I proposed this amendment, along with my noble friend Lady Jay of Paddington and the noble Lords, Lord Low and Lord Lester of Herne Hill, is that it is absolutely plain that the law is being marginalised. The law is not being applied by the Director of Public Prosecutions because it plainly no longer fits the current situation. The result of the law not being applied is that we have the horror of people going earlier to clinics abroad, without their loved ones being there on the day that they die. Equally, the law provides no protection or safeguard against abusive people, or for those under a mistaken impression of what illness they have. The only current safeguard is the fear of prosecution. That is not removed because the declaration must be made freely.
What are the objections to my amendment? First, it is said that this is a slippery slope; it is the beginning of a change. However, it is the law that people can go to Switzerland; that is the existing position. Is it fair and right to allow greater abuse than would be allowed if my amendment were passed by this House and the other place, and at the same time to have a situation where people go abroad to die without their loved ones? It is not a slippery slope. The amendment deals with the immediate position. Secondly, there are spiritual objections to my amendment. I do not seek to deal with these. They must be made, but in the context of the existing position. The third objection to my amendment is the idea that, before you make a change such as this, there should be a full-blown consultation. Of course, if we were making a change about assisted dying in this country, there should be a consultation. The difficulty is that the law has already been overtaken by events. It is, I believe, absolutely necessary for the law to reflect a situation that did not exist in 1961.
I very much welcome the debate that will now take place on the amendment. I have set out—I hope with clarity—my reasons for proposing the amendment. It is a very important debate and I greatly welcome the contributions that will be made. I beg to move.
I had assumed that the co-signatories to the amendment might wish to speak in support of the noble and learned Lord, Lord Falconer of Thoroton, but if they do not wish to do so I am very content to speak now. As your Lordships may have anticipated, I do not support the amendment that the noble and learned Lord has moved. I declare interests as a member of a variety of Christian organisations and as an honorary fellow of a number of royal medical societies.
In my view, respect for and protection of human life are a defining characteristic of a civilised society. This country has long had protection in place in one form or another against assisted suicide. I quite understand what the noble and learned Lord, Lord Falconer of Thoroton, said about his amendment, but any proposal to alter the current position involves a judgment that a certain kind of life, or a certain span of life, has become unworthy of support from that principle. If you attempt to alter the law on suicide and the law relating to attempted suicide, you immediately bring to the attention of those who suffer from serious disability the point that, if another type of life is thought to be unworthy of protection, or is deemed unnecessary to protect because of the degree of suffering or weakness that may result from it, that judgment can be applied also to disabled people. That is the reason, I believe, why so many disabled people object to any change in the relevant law. That aspect has to be kept in mind when we are considering a matter of this kind.
For the purposes of my remarks I shall assume that the law is as the Court of Appeal accepted that it was. As regards the appeal to the Judicial Committee of this House, the amendment tabled by the noble and learned Lord, Lord Falconer, may result in a case being brought before the new Supreme Court. However, the committee may be able to deal with it so quickly that that will not happen; if not, it may be one of the early cases in the new Supreme Court building. As I say, I am assuming that the law is as it was accepted by the Court of Appeal in England in the recent case. In that situation, the amendment tabled by the noble and learned Lord, Lord Falconer, proposes a procedure that in my view is unworkable. I leave the medical aspects to others, but senior members of the profession have said that the obligation placed on registered medical practitioners by the amendment is unworkable. The amendment refers only to “registered medical practitioners”. They are not required to have any particular skill or expertise in relation to assessing capacity.
The main reason why I feel that this amendment is not justified is that the present law, with and on the assumption that what is involved is a criminal offence, permits the circumstances to be looked at by the criminal prosecuting authority. In recent times, there have been a comparatively small number of cases in which the Director of Public Prosecutions and the police felt that there was no obligation to raise a prosecution—I think that the thunder is giving emphasis.
God is angry.
The fact that they felt that there was no obligation to raise a prosecution showed that the circumstances in their view made that a proper decision. But that was done after consideration by the director. We all know that there are two stages in prosecution policy: first, the question whether there is evidence sufficient to justify a prosecution; and, secondly, the question whether it is in the public interest that a prosecution should be brought. It was on the second of these questions, at least in some cases, that the decision of the director rested.
That could be a fundamental safeguard against the possibility that vulnerable people might be manipulated to go to Switzerland in order to end their lives. The cases in the books about undue influence show how a person can take a decision that, without the activities and information provided by, in particular, relatives, might not have occurred. I have thought of an example of how this might work. The son of a person suffering from a terminal illness, who had a considerable prospect of continued life, was affianced and decided that he would like to obtain a house. The deposit necessary for the house approximated to the savings that his mother, the terminally ill patient, had in the bank. In order to relieve her symptoms of pain for a time to come, obtaining a drug not authorised on the National Health Service by the National Institute for Clinical Excellence would require a substantial outlay of expense. In bringing these circumstances closely to the mother’s attention and the possibility of her going to Switzerland to enable her to end her life there, the son brought the mother to conclude that this might be the right thing to do. In accordance with the procedure in the amendment tabled by the noble and learned Lord, Lord Falconer, and explained to her by her son, she went through with it. In such a case, the present law would allow the Director of Public Prosecutions to consider the conduct of the son in relation to the whole background of the case. A protection is afforded in that way to vulnerable people against exploitation.
There is one aspect that I want to mention in conclusion. When the committee of your Lordships’ House that was investigating these matters some time ago was in Oregon, it was told that quite a substantial proportion of the people who made declarations sufficient to get the prescription for bringing their lives to an end did not, in fact, do so, despite having come to a settled conclusion that they wanted to. Quite a high proportion had the prescription given to them and never used it. That means that the person who signs the declaration in the amendment may nevertheless, at a later stage, wish to change his or her mind. The relative going with the individual could—I do not say “would”—have motives that were not altogether altruistic. It might be difficult for the person, in the face of that accompaniment, to change their mind.
The amendment constitutes a change in the law that would deprive vulnerable people, at a vulnerable stage in their lives, of a protection that the law currently affords. The fear of prosecution is quite an important aspect of the prevention of crime in many of our arrangements. The noble and learned Lord, Lord Falconer, suggested that he was proposing new safeguards, but they are of course optional. The present law is staying, so somebody who did not wish to take advantage of the amendment would simply proceed without it. Therefore, the amendment does not produce any more protection than the present system. On the basis that the present law is in fact as the Court of Appeal thought that it was, my submission to your Lordships is that the amendment should not be agreed to.
I have put my name to the amendment. The noble and learned Lord, Lord Falconer, has so completely described it that I would like to make just a couple of points and hope that I will be extremely brief in doing so.
I shall reply to the noble and learned Lord, Lord Mackay, with regard to whether the Bill provides safeguards. It is perfectly plain from the first subsection that the only conduct to be deemed not criminal is:
“An act by an individual … done solely or principally for the purpose of enabling or assisting”,
“to travel to a country or territory in which assisted dying is lawful”.
If anything more than that is done, it would not be covered by the amendment, so anything done in bad faith or in the way of improper pressure or coercion would be ruled out by the defence that the amendment provides. That is the only kind of conduct that is to be treated as not,
“encouraging or assisting the suicide or attempted suicide of another adult”.
The safeguard of two registered medical practitioners says that they must be,
“independent of each other … have certified that they are of the opinion in good faith that”,
the person “is terminally ill”—that is a matter on which two independent doctors should be perfectly capable of certifying—and, as under the Mental Capacity Act,
“has the capacity to make the declaration under subsection (2)”.
Again, I see no problem in two independent doctors being able to decide whether someone has that capacity; I shall be corrected by those who are medically qualified, which I am not.
To deal with the next point made by the noble and learned Lord, Lord Mackay of Clashfern, I say that if the person changes their mind after making the declaration, of course they are entirely free to do so. Nothing in the amendment limits that in any way. The safeguard applies only to those who are terminally ill, have exercised free choice and wish to travel to a country where assisting suicide would be lawful. The question that I respectfully suggest should be asked and answered is: why is that not preferable to the present situation, where the loved ones of someone who wishes to end their life because they are terminally ill must risk prosecution, unless the Director of Public Prosecutions decides in that case that he will not prosecute? Why should the operation of the law have to depend on the DPP’s discretion? The Court of Appeal indicated in the Purdy case that it is for Parliament, not the court, to answer those questions. If ever there were a case in which legislation needed to be reasonably clear, it is legislation of this kind, where one needs to know whether what one is doing is criminal.
I see the amendment as providing a safeguard that is now needed. A former client of mine—Annie Lindsell—had MND, did not wish to go into a hospice, did not wish to have a peg put in her throat towards the end of her life and wished to exercise her personal autonomy as a disabled person to die when she chose. Were she now alive, she would know that, under the amendment, if she wished to end her life and was totally paralysed and unable to exercise autonomy in any other way, she could go to Switzerland, accompanied by the magnificent two men who looked after her at the end of her life, and die with dignity.
I entirely understand the concern expressed by many—including the noble Baroness, Lady Campbell, who I am sure will wish to speak to the amendment—that the right of everyone to life is fundamental and that the disabled are as worthy in all respects of life and all that it means as someone who is not disabled. If I thought that the amendment would make the rights of the disabled less worthy of consideration than now, I would be totally opposed to it. Someone who is terminally ill with MND is disabled, in the sense that there will come a time when they are totally paralysed and unable to do anything for themselves. If they wish to end their life, that is a personal choice for them. The disabled should not be treated less favourably in their personal choice and autonomy than those who are not disabled. We can all go to Switzerland and kill ourselves if we wish to do so and, since the Suicide Act, we can all commit suicide in this country if we wish to do so, but those who cannot exercise personal autonomy in the end are the most seriously disabled who are terminally ill. They would get support from the amendment in knowing that, if they wished to exercise their personal choice, they could do so with their loved ones around them.
I regard the amendment as a humanitarian measure of a limited and moderate kind. It does not seek to do what the Bill of the noble Lord, Lord Joffe, did. I agree with the noble and learned Lord, Lord Falconer, that if it did something of that kind it would be a matter for full consultation and full debate. All that the amendment would do is provide a safeguard in a narrow set of circumstances.
In opposing the amendment, I speak as a doctor, a retired neurologist, and someone who in my professional life spent a great deal of my time looking after people with progressive neurological diseases and many individuals who were terminally ill. I must also remind the Committee that in 1992 and 1993 I had the privilege of chairing your Lordships’ ad hoc Select Committee on Medical Ethics, which spent a full 12 months in detailed inquiry into issues relating to whether it would be appropriate to legalise physician-assisted suicide and voluntary euthanasia. I do not intend to go into details about that inquiry, except to say that we considered with great care submissions from many different quarters, including those who favoured the question of legalising assisted suicide. I fully appreciate that three members of the committee, which I was privileged to chair, have subsequently changed their minds. I know that they have supported the Falconer amendment, but I do not, for reasons that I should like to explain.
In that inquiry looking at the issue of people who were terminally ill from progressive and fatal diseases, we recognised that there was a principle that had been applied in many cases in the past by the medical profession and accepted by the legal profession—the principle of double effect. What double effect meant was that if, in order to relieve pain, distress and suffering it was necessary for doctors to give such doses of medication as may have the secondary consequence of shortening life, this was acceptable in law and in medical ethics, but the intention must not be to kill. Since that time, I wholly appreciate that a number of philosophers and doctors have regarded that principle as being hypocritical. Some have said that it is a fudge; nevertheless I still believe that it served the medical profession well over many years.
I recognise what the noble and learned Lord, Lord Falconer, said about his opinion to the effect that, at the moment, the law on this issue is being abused. I remind him that one of the issues that arose out of that inquiry—incidentally, our report was accepted by this House—related to an amendment, which had been tabled earlier on this Bill, about the law relating to the offence of murder. The Home Office reported to us 23 cases where a family member had administered a fatal dose of medication to an individual with terminal illness because of their belief that they were assisting that person and that their motives were merciful. In all but one of those 23 cases the law was, in a sense, not accepted because each one should have been accused of murder. However, in every case but one, the offence was changed to one of attempted murder or manslaughter, because everyone knew that the motive was merciful and that, in consequence, no jury would ever be likely to convict. It was for that reason that we recommended a change in the mandatory life sentence, but that is another issue entirely. However, the law was, in our opinion and at that time, being abused and not accepted.
I turn to the issue of assisted suicide. Ludwig Minelli, who runs Switzerland’s suicide facility for overseas visitors, is something of a fanatic. He has made no secret of his view that suicide is a marvellous opportunity for a human being and that he regards safeguards as unnecessary. I believe that Parliament would be abdicating its responsibility for the safety of British citizens abroad if it were to pass this amendment. Look at the cases that have gone to Dignitas in Switzerland. They include individuals with cauda equina syndrome—weakness in the lower limbs—individuals with inclusion body myositis, and a whole series of people who have been put to death in that so-called clinic, which is not really a clinic, when there was no evidence that they were suffering from a terminal illness.
I turn to the point that the noble and learned Lord raised on safeguards and the issue of getting two medical practitioners to confirm that these individuals were of sound mind and could make this declaration. We all remember what happened to the Abortion Act as regards the requirement that two doctors should confirm that the individual was suffering from a disorder such that the continuation of the pregnancy should not be allowed. What about the qualifications of these doctors? Any regulation or law of that kind must surely prescribe in detail the nature of the medical people who would be called upon to certify these cases as being appropriate to travel abroad in company with a loved one.
Another issue came out of our report 17 years ago—I appreciate that in many respects the opinion of some Members of this House have changed and that the attitude of some members of the public may have changed. However, one of our major recommendations was that the facilities for palliative care for people in terminal illness should be vastly improved. Palliative care has changed out of all recognition. As a consequence of the law legalising euthanasia in the Netherlands, where we visited and saw that more than 1,000 people a year were being put to death by euthanasia when they were not capable of giving or withholding consent—the consent was given by others—there has been a decline in palliative care. In this country it has been extended considerably. Palliative care is provided not just by hospices but by doctors who are fully trained in general practice to administer palliative care. I believe that the situation is such that everyone in a terminal illness can be entitled to and can receive a quality of medical care to help them to die well.
I end with a quote from one of the papers I have received:
“If I were asked whether I would prefer to receive high quality palliative care in a terminal illness and would be enabled in the UK to die well, or whether I would rather go to Switzerland to be killed, I have no doubt which choice I would make”.
I, too, have signed the amendment and I had the privilege also of serving on the Select Committee chaired by the noble Lord, Lord Walton of Detchant. It was many years ago, as he reminded us. I say to him and to other Members of the Committee who raised some of the general points about palliative care and the Suicide Act in this country that, frankly, that is not what this amendment is about. It focuses exclusively on the particular circumstances of people who are terminally ill, who have mental capacity, and who have made a determined decision that they wish to travel abroad to have an assisted death.
The noble Lord, Lord Walton of Detchant, and others referred exclusively to the situation in Switzerland, but let us not forget that one could, for example—if one wished to—go to the Netherlands, Luxembourg, Belgium or, if one wished to make a long journey, Oregon or Washington State. Therefore, we are not in this amendment seeking to make judgments about a particular institution, which some noble Lords may feel has an unattractive presentation. That is not what this debate or this amendment is about. It is not about assisted suicide laws in this country. Frankly, it is not—except indirectly—about palliative care. I should also say, with great respect, although I took very clearly the points of the noble Lord, Lord Lester of Herne Hill, on disability, that it is not about disability. It is about a very narrow situation which my noble and learned friend Lord Falconer very adequately described in his introduction.
Taking the lay person’s view on all of this, one is entitled to have as a citizen a clear view about whether one’s individual conduct is criminal or not. In this respect, I refer the Committee to the point made by my noble and learned friend the Attorney-General in response to a previous amendment to the Bill. She said:
“One of the things that we aspire to achieve with these provisions”—
that is, with the Bill—
“is a greater degree of clarity, certainty and, therefore, consistency”.—[Official Report, 30/6/09; col. 169.]
That is precisely what my noble and learned friend’s amendment is trying to achieve on a very narrow perspective. In supporting him, I should like not simply to reinforce that legal point, but to make a slightly more general, and perhaps more emotional, point about the nature of the people and their circumstances who would be affected—and, indeed, would be helped—if this amendment were agreed.
At Second Reading, I gave some examples of people who were faced with very agonising choices for their families and who would confront a situation whereby they could give one last act of loving kindness to a person who, as I said, is determined and of sound mind to travel abroad to somewhere where it is legal to get an assisted death. They can do that, but are then in the terrible situation that they may face prosecution. I mentioned people who defied the law to give that comfort and assistance. I mentioned those who felt terrible guilt for many years because they had been deterred from accompanying a loved one, and those who chose to keep their plans secret from a wider group. In one instance, a couple went to a place where they could effect a dignified death so that they would die together. In every circumstance, there was a clandestine nature to the activity and a sense that they were trying to keep something very quiet. I received a letter today from a woman with multiple sclerosis who said that she did not want to “sneak off” to another country to die earlier than she needed to. All of these people—and all of us who support the amendment—would like to see the desire expressed by the Attorney-General for clarity, certainty and consistency achieved by the amendment. That is what I would like to see.
With all due respect to the noble Baroness, I am not persuaded that this is a mere narrow and technical amendment. I see it as touching on concerns that ought to be at the heart of English law. I speak as the father of a 30 year-old woman with Down’s syndrome. For much of her life, she and others like her have been the subject of countless government and other programmes, apparently intended to increase responsibility and choice. However, the lived experience of my daughter’s life is that, for people like her, intention and reality often end up being far apart. With all respect to the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Lester, speeches about freedom, choice and personal autonomy may be fine for those, including many of us in your Lordships’ House, who are well educated, articulate and not totally economically dependent on others. We are used to shaping our lives through the autonomous choices that we make. However, I ask noble Lords to reflect for a moment on the many people, in this country and the world, whose experience of life is much more about being “done unto”—sometimes by those closest to them—and whose experience of professionals, including doctors, is not always of people of good faith, like you and me, but of remote, aloof and often faceless people who make decisions that may not immediately reflect, or appear to reflect, the client’s interests or long-term needs.
I ask noble Lords to consider whether a person whose life experience is not all about being in control and making free choices is likely to see any loosening of a law that is designed to protect the vulnerable from others and from themselves as being the compassionate liberalism that we are told it is intended to be. For too many, the promise of more choice has so often turned out to mean pressure to choose that which suits others. People who have not led assertive lives, exercising their own choices, have often internalised the notion that others know best. They end up valuing their own lives far too cheaply. Are we to offer them the ultimate opportunity to give way to the will of those around them? I ask this in the context of the amendment, which by definition would involve the state in affirming the view of an individual life as being, in at least some circumstances, intolerable and not worth living.
One of the prime functions of law is to protect the weak. So let us be very wary of any changes to the law that are based on an assumption that all human beings are like us: confident, articulate and used to choosing the direction of their lives. For many others, choice is not always a promise: it can feel like a threat. Time and again, history has shown that once a principle is breached it becomes very hard to police the boundary. That is my greatest worry about the amendment. Its apparent modest provision to provide support for those who have determined to seek assisted death abroad will, I am certain, despite all that has been said, come to constitute a legislative milestone on that slippery slope to introducing assisted suicide here in the UK by incremental degrees. My concern, on behalf of the most vulnerable, is that what is presented as an extension of “my right to choose” can too quickly become an option that I am pressurised, however subtly, to accept.
The philosopher, Alasdair MacIntyre, says that the fundamental truth about human beings is not that we are autonomous individuals, but that we are dependent on one another. Through good palliative care, our nature as dependent creatures can be given an eloquent expression through the skill of the medical and nursing professions. Most doctors, and the BMA, understand the provision of palliative care as central to their calling but are extremely wary of assisted dying. The vision of our mutual dependency is surely better realised in a relationship dedicated to controlling pain and supporting life until death comes, than in the dry, consumerist image of a medical profession part of whose job is to respond to a patient’s demand to die.
So often this debate about assisted suicide is presented in terms of a conflict between warm compassion and cold dogma. But this is a false antithesis and far from the reality that the debate needs to be about. The real debate is about how a compassionate society discerns and enshrines in law what “compassionate” means for all its citizens, but particularly for the weak and vulnerable, with all the complex reality of their lives, and in a way that appears to reduce neither the value of individual human life, nor the mutual responsibility of us all.
This is a matter that deserves thorough debate and scrutiny in a substantive measure of its own. It is far too important to be dealt with in the loosely drawn amendment that it is now proposed to attach to this already broadly drawn Bill.
Last week, the BMA rejected the amendment’s proposal, and also rejected supporting physician-assisted suicide generally. Why? Because it saw that this does not serve true choice in patient care. There are no safeguards of substance here. The two doctors have only to be registered—in other words, a year out of medical school. They need no training in the patient’s condition, in assessing mental capacity or in detecting coercion. Each doctor has to do only a single assessment, which will inevitably miss some impairments in capacity and distorted thinking that may be fluctuant. The requirements would not have safeguarded the patients in the five cases highlighted by the noble and learned Lord, Lord Falconer, in his opening remarks.
This is a rubber-stamping exercise. The criteria are far less rigorous than those required for other serious assessments such as brain-stem death. What about the witness? Will they be a lawyer, or trained to detect coercion? How will the witness check the veracity of the doctors’ statements? The declarations do not have to be formally registered with the Ministry of Justice; nor do they have a shelf life. There is no monitoring here, and the requirement that the patient has read or been informed of the contents of the doctors’ certificates affords less protection than the informed consent required for major surgery.
Where will the registered medical practitioners come from? In Oregon, there is a culture of doctor-shopping. The pro-assisted-suicide organisations link patients to a compliant doctor. The Oregon health department’s report showed that a tiny number of doctors provide all the lethal prescriptions. Such doctors from pro-assisted-suicide organisations are hardly going to be unbiased in their “in good faith” assessments. Let us not be fooled into thinking that a second, independent doctor is a rigorous check. I remind the Committee that Dr Shipman’s cremation forms were all signed by doctors independent of him. That safeguard failed in several hundred cases. More than 90 per cent of doctors in palliative medicine in this country want nothing to do with this, as we work day in and day out with those with end-of-life diseases, on their management and care.
The amendment certainly does not define terminal illness. Indeed, as stated, many of the Britons who have had assisted suicide at Dignitas were far from terminally ill. The definition which I used in my Palliative Care Bill related to an entitlement to care. If more than those who fitted the definition came within its ambit, they certainly would get more enhanced care than they were already receiving but that would not endanger the safety of anyone. They would simply receive that care and, subsequently, be discharged back to ordinary care.
Even when patients are thought by their doctors to be terminally ill, trying to predict time of death is notoriously inaccurate. In one in 20 post-mortems, misdiagnosis of a terminal illness has been shown to result in inappropriate treatment. I am afraid that I see enough patients every year who are thought to be terminally ill and dying to know that it is not easy to establish. Even, four years ago, when my mother was in a hospice, I and the doctors looking after her thought that she was within days of her death, but we were proved wrong. She lived to see her two great-grandsons born and now says that she has a great quality of life. I never believed that I would have my mother now.
Assisted suicide does not guarantee a peaceful death. There are well documented cases from Oregon, Switzerland and Holland of patients waking up again, some in overwhelming distress, hours or days after taking their lethal prescription. Once immunity from prosecution is granted, there is no check whatever. As care becomes more burdensome and family funds dwindle, why not encourage a patient to travel? Such pressure could be brought to bear by a family free from any worry that they might face a severe penalty. The amendment is an invitation to those whose wish for their relative to be put out of their misery may be dubious. Indeed, relatives often feel that a patient should be dead before a patient is ready to die, yet this amendment naively assumes that relatives never stand to gain anything by a foreshortened life.
Remember the Court of Appeal's judgment last November in the Purdy case which stated:
“Cases of assisted suicide … vary hugely in their criminality … not all cases of assisted suicide represent the final act or acts of love or the culmination of a lifelong loving relationship”.
Only too often, patients feel that they cannot or should not go on. Improved care and dealing with their concerns results in them subsequently saying that they are glad that they are alive and that they never believed that they could have such good quality of life.
Some months ago, a man referred to me was adamant that he would travel to Dignitas but he wanted better pain control for the journey. His wife fully supported his decision and I felt that it was inevitable that he would go. Tentatively, I asked whether he had any unrealised dreams. He said that he had always wanted to go on a cruise but that that was now clearly out of the question. I suggested that we controlled his pain and got him on the QE2, where he had the time of his life. Eventually, months later, he died at home after a winter trip to the beach and an overly large helping of fish and chips. He never went to Switzerland and his wife is clear that neither of them would have missed the last months for the world. How hard his care was for us all. It was not easy but it would have been easy to have simply processed his request.
People change their minds. The law as it stands dissuades relatives from readily taking people to commit suicide. It dissuades clinicians from going for the easy option which would be to acquiesce to such requests. Make no mistake, coercion is very subtle. This amendment is no simple tidying up of the law; it would provide immunity from prosecution, irrespective of the subsequent events around the death.
Finally, which “country or territory” is referred to in the amendment? It actually means Dignitas in Switzerland because it provides suicide for non-Swiss nationals. Oregon and the Netherlands certainly do not take non-nationals for suicide and Belgium and Luxembourg are extremely reluctant to because they do not want the label of “death tourism” which has applied to Switzerland. Despite the media hype, the Swiss suicides referred to represent fewer than one out of every 50,000 British deaths.
However, the articles in the British press, as well as highlighting those who have gone to Dignitas, have also importantly exposed just what has been going on at Dignitas. Ludwig Minelli, its founder manager, wrote to me and the letter is in the Library. He said that he felt that he should make sure that suicides were complete because of the healthcare costs of failed suicides. His nurse, Soraya Wernli, who was working for him when the Select Committee visited, has blown the whistle and gone to the Swiss authorities, having become so disturbed by what she has witnessed. The attorney-general of the canton of Zürich warned the Select Committee that there is no surveillance and no state control, yet this amendment encourages more British people to place their relatives in the hands of Mr Minelli.
The noble and learned Lord, Lord Falconer, said that at present there is nothing to stop people going off to Switzerland without any check on their mental or physical state. Therein he recognises that there are no adequate controls at Dignitas, yet he proposes that we facilitate people going there. In the past 10 years we have had 37,000 suicides in this country and 27,000 open verdicts. Suicides are tragic. Those were all people who felt that they would be better off dead. The amendment invites us to endorse the view that for some, the terminally ill, there should be assistance. Should we really be setting less value on the lives of those who are seriously ill than on those who feel that their lives, for whatever reason, hold for them no value and no future? The law sends a signal. This amendment will preferentially attract those whose motives are dubious in assisting the foreshortening of a relative's life through suicide because its so-called safeguards are illusory. I understand that this would be the only time someone would have immunity from potential prosecution in advance of an event.
No matter what you feel about assisted suicide or euthanasia, we have a duty to look very carefully at the words before us. The amendment provides far fewer safeguards than earlier assisted suicide Bills put forward by the noble Lord, Lord Joffe, and the House rejected those as unsafe. It should give the same response here.
Most of the arguments that I would have wished to put have already been put very much better by other noble Lords with medical and legal knowledge. The most impressive argument is that we have to take account not merely of compassionate assistance but of interested assistance and it is extraordinarily difficult to imagine any drafting that would do that.
I wish to draw attention to one aspect of the drafting of the amendment, about which I am still very unclear. In subsection (1)(a) the safeguard is that,
“the act is done solely or principally for the purpose of enabling or assisting T to travel to a country or territory in which assisted dying is lawful”.
An intention which is solely or principally for a certain purpose gives one the idea that what is at stake is one last holiday in Switzerland and is perhaps solely or principally for the purpose of travel. We all know that the circumstance which we are discussing is not solely or principally for assisting travel. It is principally for assisting someone to reach a territory where they can have assisted dying. Therefore, I cannot see that there could be cases that would meet the provision of this amendment in its own terms.
I should like to follow the point made by the noble Baroness, Lady O’Neill, and suggest that the most important word in subsection (1)(a) of the amendment is the word “travel”. However, my point is slightly different from her point. As the noble Lord, Lord Lester of Herne Hill, said, the sole limit of this amendment is to exculpate those people who assist in making travel arrangements and who travel. I see the noble Lord nodding. If that is literally the case as the amendment has been drafted, as I believe it inevitably to be, then it must mean that the amendment will totally fail in its purpose of exculpating persons who go with their loved ones to a clinic in Switzerland or somewhere else for this purpose.
Imagine that the family has arrived in Zurich at Ludwig Minelli’s clinic. The travel is over. They see a doctor; there is consultation. They are there to give moral support and presence to their loved ones. They are there at events leading up to death. They are clearly giving aid and comfort—as is their very purpose, the purpose of their presence there. But the travel is over. That means that all those acts—and they are the crucially important acts—would be beyond the scope of this amendment.
I apologise for interrupting the noble Lord. There are two separate answers to that and perhaps he would like to consider them in his reply. First, acts that take place outside Britain altogether at the moment are not thought to be a crime anyway under the Suicide Act. Secondly, subsection (4) of my amendment deals with it.
Those two submissions raise a number of different questions and, in any event, it probably would have been possible by a very simple amendment to have corrected the difficulty. However, I raised that point because it is one that obviously calls for far greater consideration.
The main argument put forward by the noble and learned Lord is that the law, in relation to the 115 families that have gone to Zurich, has fallen into desuetude. I do not think I am doing them a disservice by summarising it in that way. The noble and learned Lord says the law has not been operating—but the law is being operated. Each and every one of those cases is examined by the Director of Public Prosecutions. He is not oblivious to what is happening; he is charged with a specific task. He is charged with a task and responsibility of acting in a quasi-judicial capacity to determine whether prosecutions should take place. That is not unique in any way to this particular law, nor indeed to dozens of other laws that we still have on our statute book. There is nothing capricious in the function of the Director of Public Prosecutions in that case: he is exercising a judicial role in a very disciplined and consistent way. Therefore, to pretend in some way that the law has fallen into desuetude and that consequently there is not only justification, but even demand, for this amendment is wholly fallacious.
Again, it is wholly fallacious to say that this is just a cosmetic change— a minor matter which acknowledges the situation as it exists at the moment. Not at all. Is there anybody in this House who believes that, if this amendment were carried, it would not inevitably lead to legalising physician-assisted death in the United Kingdom? Many slippery-slope arguments are less than worthy, but I believe it wholly inevitable that that is what would happen. What one has to consider are not the compassionate arguments—and there are compassionate arguments in relation to this huge problem. I saw my mother wither and die when I was a small boy and I saw my wife go through the same torture about two and a half years ago. I am not without feeling for people who are in the situation of being in extremis. But what we have to consider is the effect that it has.
John Donne said:
“Any man’s death diminishes me, for I am involved with mankind.”
He was not speaking as a priest of the Anglican Church, which he was: he was speaking as a humanist. He was saying that the institution of life itself is diminished by every single death. How much more is it diminished by a deliberate death? That is the situation. We have to ask ourselves, “What messages would reverberate from this House if this amendment were to be carried tonight?”
What of the hundreds of thousands of people who at this very moment may be saying, “Well, life isn’t worth it. I’m hanged if I know if I can face the very next day, let alone the next week”. What effect would it have on those people? Logically, there is no causal connection between this amendment and their state of mind, but one knows psychologically that there will be. Logically, there is no reason why palliative care should be regarded as less important than it is. Britain has made splendid and honourable strides in that field, but psychologically it could well have that effect because people could say, “There is a very clear exit that is an alternative to it”. What would happen in the nightmare situation in a place like Bridgend? This amendment certainly will not help that.
I speak simply as a medical practitioner when I say I have every sympathy for those unfortunate patients and carers who find themselves in the horrible position of those examples we have been hearing about. However, when one hears of what goes on at Dignitas—where, in an unregulated hotel room, an unregulated non-medical enthusiast helps anyone who wishes it to commit suicide—it is difficult to have much confidence that this is what we should be encouraging.
I have another concern. I refer to the effect of accepting this amendment on any future Bills which are likely to come before this House along the lines of the assisted dying Bill that we have hitherto rejected. Imagine the discussion we will have, and the clearly illogical and somewhat ludicrous position we will then be in, where a relative can quite legally take a person abroad for assisted suicide, but could not do so in the United Kingdom. Passing this amendment here and now would make it quite inconsistent of us not to pass such a Bill in the future. It would, in effect, short-circuit the sort of detailed and considered debate that we will need about the pros and cons of an assisted suicide.
For that reason, I believe we should await a fuller consideration at that stage. If a new assisted dying Bill was to be passed after a full debate, then we would not need this amendment. For that reason, I oppose it.
In 1961, we in the United Kingdom were humane enough to remove suicide itself from the list of crimes. That prevented the possibility that people who had failed in a suicide attempt could find themselves facing a trial in court. I doubt whether anyone would want to revert to making suicide itself a crime. The Suicide Act 1961 left aiding or abetting suicide as a crime. I believe it was quite right to do that. Most people who commit or attempt suicide do so because they are suffering from severe depression or because they have been overwhelmed by some crisis in their personal lives. These people should not be helped to commit suicide; they should be helped out of their wish to kill themselves and restored to normal life.
Terminal illness is not in itself a justification for assisting a victim’s suicide. Most of us will, at the end of our lives, suffer from a terminal illness, but few of us, I suspect, will commit suicide. Many people who become terminally ill will receive palliative care. For many people, and many diseases, it works, and all of us respect the noble Baroness, Lady Finlay, for the work that she has done in that field. However, for a small number of people and a small number of diseases—notably, motor neurone disease—palliative care is in many cases insufficient. The last weeks of the people who suffer from those diseases will be grim, painful and degrading, and I do not believe that they are acting wrongly in wanting to commit suicide to cut short a horrible ending. If they need help, I do not think that their helpers are acting wrongly in giving them that help. That is why I support the amendment.
The noble and learned Lord, Lord Mackay of Clashfern, based his argument on respect for human life. My argument is also based on respect for human life. When someone close to the end of their life, in pain and distress, wants to die, it is no respect for their life to force them to stay alive. That is why I believe that the amendment is justified.
Before I begin, I need to remind the Committee that the usual channels have allowed my noble friend Lady Wilkins to finish my speech should I be unable to do so, but I hope to be able to do it myself, as I have a lot to say on this issue.
I shall speak against the amendment moved by the noble and learned Lord, Lord Falconer. It is the overarching intention of the amendment that I want to address; I shall leave the detail of the legal implications to my noble and learned friends. The culture that the amendment will bring about is something that I think noble Lords need to think about. I simply point out that if we go with the amendment, we turn the traffic lights from red to green on state-sanctioned assisted dying, albeit in another country.
Be under no illusion that this is not about disability. It is. I tick every box of the definition of the noble and learned Lord, Lord Falconer, for going to Switzerland to die. I could go tomorrow and, believe me, I would have no problem persuading two doctors. Indeed, three years ago, two doctors persuaded me that my life was at an end and that it was time for me to go on my way, as they put a DNR notice on my medical records. So it is about disabled people, and it is about people with terminal conditions.
Many of your Lordships will remember that these issues were discussed in much detail when the Assisted Dying for the Terminally Ill Bill, introduced by the noble Lord, Lord Joffe, was debated in 2004. I did not have the honour of being a Member of your Lordships' House at the time, so I was not in the Chamber. However, I was not far away. I was across the road in Old Palace Yard with more than 100 other disabled people with terminal conditions—motor neurone disease, multiple sclerosis; you name it, we were there. We were protesting against that Bill. We were not alone. Many people joined us.
Why were the terminally ill there? Why were disabled people there? After all, the noble Lord, Lord Joffe, had stated time and again that his aimed was to help us. We were there for a very simple reason: because we feared for our lives and the lives of hundreds of other disabled people if the Bill were to become law. Our belief was that if the state were to sanction any person to assist another in the ending of that person's life, it would switch the mindset of doctors and those who would help us in this country to thinking that that is what we really want—the very people who need every encouragement to live and not to succumb to society's prevalent view that our situation is so tragic, so burdensome, so insufferable that surely we must want to die. It takes an extraordinary will to rise above such views, and many do not, especially when those views are held by our loved ones. That is when it is the hardest.
Concern about the Assisted Dying for the Terminally Ill Bill led to the formation of an organisation that we naughtily called, Not Dead Yet UK. I have T-shirts at home; you can have one if you like. The name is taken from the long-established group of disabled and terminally ill people in the United States. Their experience of Oregon, and the potential for other states to adopt similar legislation, has heightened the fear of disabled and terminally ill people in America. It has not lessened it. It does not bring comfort, as so many people think that the amendment will bring in this country.
Noble Lords will be aware that not a single organisation of or for terminally ill people or older people supports this assisted dying legislation. That includes organisations that advocate on behalf of people with motor neurone disease and multiple sclerosis—two disabling conditions that are often referred to when describing who would benefit most from the legislation. Today, an open letter imploring noble Lords to resist the amendment was delivered to a newspaper with more than 20 signatories from disabled leaders and organisations for disabled people, including the chief executives of Radar and the National Centre for Independent Living.
With the exception of a few vocal—and, I have no doubt, sincere—disabled individuals, assisted dying is not supported by the very people whom it is intended to benefit. Its advocates are people who fear disability and terminal illness: people who have witnessed the progressive nature of disability or illness but who have not experienced it—a natural reaction, you may think, to any dramatic circumstance, but to suggest assisted dying or this amendment is to abandon hope and to ignore the majority of disabled and terminally ill people whose lives benefit us all.
This House has repeatedly taken the view that it cannot support assisted dying. Proponents for a change in the law have brought several Bills to this House, each more tightly drawn than the last. However, your Lordships have seen through that tactic and held firm. I believe that these amendments are being used in another attempt to find a chink in your Lordships’ armour. The justification given is that they are merely devices to bring the law into line with current practice. I do not believe that. I believe that they are intended to establish the precedent that assisted dying be sanctioned by the state. Where the deed is done is irrelevant.
I am sorry that some see this as merely a legal puzzle that can be solved with precise drafting of legislation and that it is possible to help the few while protecting the many. That is not the experience in either the Netherlands or Oregon, where the laws have been used to establish death as an option for all disabled and terminally ill people to consider. Legalising premature death as a treatment option plants a seed of doubt about one’s right to demand help to live with dignity and undermines the state’s responsibility to ensure that all citizens can live with dignity.
If this amendment were to succeed, it would place a new and invidious pressure on disabled and terminally ill people who think that they are close to the end of their lives. Some will consider death as preferable to fighting for support to live with dignity. It will be the cheapest, quickest and simplest option. Think of older people who are anxious not to cause their families any distress. Evidence from research in this country and abroad shows that most people who seek assisted suicide give “not wanting to be a burden” as the principal reason for seeking death. The increased-choice argument is not valid until we live in a society that values us equally, where we can live with dignity and do not feel burdensome—a society whose health system offers genuine pain relief for everyone.
Lastly, if these amendments were to succeed, despair would be endorsed as a reasonable expectation for which early state-sanctioned death is an effective remedy. Is this really the message that we wish to give disabled and terminally ill people? Is this really the future that we wish to offer those who become terminally ill? Those of us who know what it is to live with a terminal condition are fearful that the tide has already turned against us. If I should ever seek death—there have been times when my progressive condition challenges me—I want a guarantee that you are there supporting my continued life and its value. The last thing that I want is for you to give up on me, especially when I need you most. I urge your Lordships to reassure us by rejecting this amendment.
It may come as a surprise to many in this House that I am against the amendment. Although I am a great believer in individual liberty and in the autonomy of the individual, I also believe strongly in the symbolic nature of law. The laws of a nation say a great deal about who we are and what we value. One of the ways in which cultural shifts take place in a society is by changing law. Many of us who have argued that changes in attitude follow changes in law did so particularly around issues of discrimination. We made arguments for changes in the law on racism and other discrimination such as gender, sexuality and disability. When others argued against us and said that racism was about beliefs and that the law could not bring about the changes that we sought, we countered by saying that the law sends out powerful messages. We know that in this House. The law matters and has the power of changing our society.
Before we introduce this legislation, therefore, I would like us to be sure of what the cultural implications might be. Legal changes made for benign reasons can have unforeseen and negative consequences. The consequence that concerns me, as it concerns the noble Baroness, Lady Campbell, is that with this legal amendment we create a climate in which the terminally ill, the disabled and the elderly who are sick feel even more profoundly vulnerable or feel that there is an expectation that they should take steps to end their lives.
As a criminal lawyer, I have acted for a family whose members were prosecuted for manslaughter. They were accused of failing to act to prevent the suicide of an elderly relative. I am conscious therefore of the anguish that cases of that kind can bring. As a criminal lawyer, however, I am also cognisant of the ways in which malign pressure is brought to bear on the vulnerable when they are at their most vulnerable and that this is done in criminal ways. We have well developed legal processes for making difficult and sensitive decisions about when to prosecute. The Director of Public Prosecutions has indicated that no prosecution in this area will be brought where there is no prima facie case of bad faith or ill intent. No prosecution has been brought against any accompanying person in the Swiss cases. In my view, it is right that the responsibility for commencing a prosecution should rest with the director.
For eight years, I chaired the Human Genetics Commission. We produced a report on reproduction and genetics, which, interestingly, picked up on one of the things that the right reverend Prelate spoke of. One of the alarming pieces of evidence that came through in producing that report was that genetic tests happened as, or were becoming, a matter of course and that pregnant women felt required to have genetic tests to determine whether they were carrying an embryo that was less than perfect. Many described to us in evidence a sense that somehow they were being required to consider whether they should proceed with a pregnancy where a baby would be born with a disability such as Down’s syndrome.
Choice can, if we are not very careful, in the end mean no choice. Choice has real meaning in a society only if we really care for those who have disability and really provide the right level of resource for those who are dying. The good society should be resourcing palliative care in the way that we have heard about.
I am opposing this amendment because I think that it could so readily lead to a coarsening of our societal values and a diminishment of our commitment to the ill, to the disabled and to those who are terminally ill. I understand the good intentions of those who presented this amendment but I am afraid that I think that it is ill-conceived. I hope that the Committee will vote against it.
I entirely agree with the noble Baroness, Lady Kennedy, on the symbolic value of the law. We should try to return to the whole purpose of this amendment, which is very narrow. I know that many of your Lordships have said that, if this amendment were to be carried, it would inevitably follow that we would have another discussion on the much wider issue of assisted suicide becoming legal in this country. However, that is not inevitable. It is perfectly possible that somebody may put up such a Bill but it is entirely up to Parliament whether that Bill is even given a Second Reading. Last time in this House, the Bill was not given a Second Reading. That process can go on again and again.
This amendment, however, has a narrow purpose. It is highly focused on the position that we are in now with the law, which is that there is uncertainty. The general public who are neither lawyers nor doctors do not fully understand what is meant when the Director of Public Prosecutions says that it would not be in the public interest to prosecute. Why would it not be? If assisted suicide is wrong anywhere and if it is wrong in principle, he might argue that it would be in the public interest. We need more clarity about the reasons for which no prosecutions have been made and we need to have that clarity soon.
I want to make two other brief points. First, I have a deep interest in the well-being of the disabled at any stage of their lives and there is no doubt that they need protection still more when they reach the end of their lives, whenever that may be. However, I think that there is confusion if we run the disabled as a class of people, members of society, into another class of people, the terminally ill, although they may overlap. There are two different concepts and we should not bring them together under the general heading of the vulnerable about whom we hear, in my experience, all too much. Being vulnerable is a judgment made by somebody about another person; in my experience, it is not a judgment that one ever makes about oneself. To be classified as vulnerable is to be regarded from a great height by lawyers or doctors, above all, or nurses. They deem one to be vulnerable. There is a very small category of people, of whom we have heard today, to which belong some of those people who have gone to Switzerland to commit suicide, who do not want to be categorised as vulnerable. They therefore make their own decision.
Secondly, we have heard a great deal today about predatory, selfish relations who want to bump people off, but there is another class of relations—children, perhaps—who have been very difficult to persuade to help their parent or loved one to go to Switzerland. I think of the case of Dr Anne Turner. She was completely determined that she was going to die. She had three children and had the greatest difficulty in persuading them that her decision was rational, best for her and, incidentally, possibly best for all of them, although she did not emphasise that. They came to the conclusion, with great difficulty, that she was right and knew her own mind and they went with her, helped her and stayed with her. I believe that people like Dr Anne Turner should not automatically be sacrificed for the sake of those people who genuinely do not want to die or who are incapable of making up their minds whether they want to die or not. Why should people like Dr Anne Turner be the ones who have to put up with it for the sake of other people who are in a quite different position, who may be disabled or under pressure from their nasty relations? As it happened, she did not have any nasty relations; she had nice ones, and there are those people in the world who are prepared to put themselves at risk for the sake of their parent, their spouse or whoever it is. We should go back to what this amendment is about and not fear the slippery slope. We should aim for the positive result of clarifying the law as it now stands.
I think that we can all accept that the arguments that have been made opposing this amendment have been powerful, cogent and persuasive. However, it has struck me that some of them tend to bypass the present situation. We have legalised suicide; we have people going to Switzerland or wherever—if they can afford it, they go to Oregon. It seems to me that the question before the Committee is whether the amendment tabled by the noble and learned Lord, Lord Falconer, et al improves the position of those who want to go and have made up their mind to go to Switzerland. In my view, the lot of the unhappy is improved by this amendment.
I put my name to this amendment in the belief, which has been endorsed by others, that it is a comparatively narrow, targeted amendment. It is designed to remedy the lack of clarity about the current law and practice that gives rise to considerable anguish. I also believe that the safeguards in the amendment are by no means negligible. I say to the noble Baroness, Lady Finlay, and others who have questioned the robustness of the safeguards that the framers of the amendment would be more than happy to look at them further to see whether we can bring back something that would be more acceptable to noble Lords.
The main way in which I feel I can help the Committee is by making a different point. From the representations that we have received from people who have written to us in this House and from what we have heard at various times during the debate, it would be easy to gain the impression that disabled people are completely against the kind of legislation contained in this amendment. No doubt many noble Lords have received a letter from RADAR stating that many disabled people have expressed real fears that the amendment could open the door to people being coerced into going abroad for an assisted death and pose a risk to the lives of many disabled people. I do not believe that that is a realistic fear. If that is what disabled people fear, I have to say to them, with the greatest respect, that they are mistaken. There is, no doubt, an argument to be had about assisted suicide and voluntary euthanasia, but I do not think that it is to be had on this narrowly drawn, focused amendment.
As has been made abundantly clear, the amendment is confined to those who two doctors are prepared to say are terminally ill, who have provided written evidence that this is the course that they wish to follow and that they know what they are doing and whose consent has been independently witnessed by someone who has no stake or vested interest in the patient’s death. There is no way in which this amendment gives the slightest encouragement to anyone thinking of coercing the generality of disabled people into going abroad for an assisted death. It is a major act to go abroad in order to die with dignity. It is implausible to suggest that people can easily be conned into doing it. Tony Benn once told the story of somebody who wanted to go to Switzerland to be assisted to die with dignity, but in the end changed his mind because he could not abide the thought of being killed in an air crash. That illustrates that it takes a certain amount of courage to undertake this course and it is not something that people can be easily bamboozled into.
As I said, it would be easy to gain the impression that disabled people are completely against this kind of legislation, but that is not the case. Disabled people do not speak with one voice on this issue and there are numerous opinion polls showing steady support for legislative change. Eighty-two per cent of the general public surveyed in a 1996 British Social Attitudes Survey thought that they should have the right to ask a doctor to end their life if suffering from an incurable and painful disease. Disabled people were just as likely to be supportive as the rest of the population. Younger people who had a disability were indeed more likely to support assisted dying than non-disabled people of all ages. The survey stated that those with a disability were more pro-euthanasia than those who were able-bodied. A possible explanation for that is that disabled people were more inclined to sympathise with those in pain or suffering, or with those wholly dependent on others who wished to end their own lives. However, the survey said that that disability effect applied only among the young. It said that, among older respondents, there was no significant link with attitudes towards euthanasia. By that it meant that disabled people were neither more nor less likely than the general public to support euthanasia.
In case noble Lords think that this evidence is too dated, a 2004 YouGov poll showed that, of disabled respondents, 80 per cent supported assisted dying legislation and 82 per cent believed that the current law discriminated against disabled people who wished to end their lives but could not do so without assistance. Seventy-six per cent felt that such legislation would have a positive impact or no impact on society’s view of disabled people and 84 per cent said that they would trust their doctor the same amount or more.
I am afraid of being terminally ill, as I imagine most of us are. If I were, I think that I would hope to be able to avail myself of the benefits of legislation such as that enshrined in the amendment. However, as a disabled person I am not afraid of disability and my support for this amendment does not stem from my fear of disability. It is an unworthy suggestion if it is thought that that is the origin of my support for the amendment. As a disabled person, I lead a full and fulfilling life, which I hope will go on for as long as possible. As I say, when the time comes for it to end, I hope that I could avail myself of the benefit of legislation such as is enshrined in this amendment. As someone who is not afraid of disability but, like many people, who is afraid of terminal illness, I urge noble Lords to support the amendment.
It may be appropriate to have two or three sentences from someone who once held the huge and wonderful office of Secretary of State for Health. I want to associate myself warmly, which was not always the case when I was Secretary of State, with the views of the BMA, as so eloquently expressed by the noble Baroness, Lady Finlay.
We have to be realistic. We have heard the phrase “predatory families”; there are also such things as predatory bureaucracies. The noble Lord, Lord Turnberg, said most exactly what worries me. This would open the way to a shift in perception across the board, and it would begin to shift the perception within the appalling decisions that have to be made about resource allocation within health services. It would open another front. The health service bureaucracy has to be able to rule out that kind of resource allocation by saying that that is not something that we will consider.
We have heard wonderful examples today from patients, doctors, nurses and lawyers. All the individuals who work within these bureaucracies are of course sanctified, particularly when they are in your Lordships’ House. But bureaucracies do not have souls, and given broad signals, they can move quite quickly in ways that individuals looking at hard cases had originally not envisaged. I urge noble Lords to keep this light on red, as the noble Baroness, Lady Campbell, put it so eloquently.
I support what we must remember is a narrow and focused amendment. This is not the day to have a wide debate on assisted dying, although I would welcome that in the not-too-distant future. This is a narrow, focused amendment that would rectify deficiencies in the legislation as presently presented. It represents a humane clarification and improvement on the current law, with appropriate safeguards to protect vulnerable people. It is much more in line with the 21st-century reality of a growing number of Britons who go abroad to end their lives, whether we like it or not. That is what is happening, and the law is inadequate to deal with it. It puts a great deal of responsibility on the Director of Public Prosecutions, so that is the reality of the issue in this amendment.
A number of noble Lords have raised issues that relate to the wider debate on assisted dying, and I want to correct one or two of them. I am no great fan of BMA polls, but the recent one shows that the majority of doctors are against assisted dying. About 45 per cent are actually in favour of the amendment, so medical opinion is mixed. It is not uniform, and not all doctors are saying that they are against assisted dying. Not all doctors say that they are against this amendment.
On the issue of palliative care, no one is more supportive than me. I will march shoulder to shoulder with the noble Baroness, Lady Finlay, in support of more resources for palliative care but, on reaching a certain point, a minority of people—I include myself—want to make their own decision about when they die. They cannot always rely on the health and social care professionals providing the palliative care to respect their views and wishes. That is a sad fact of life. That is not to diminish the work that such people do, but it will keep us focused on the fact that a minority of people strongly believe that it is their decision to choose the time when they leave this world. We have to respect their views as well as those of vulnerable people who are disabled. We are trying to craft legislation that meets a diverse group of needs. We are not trying to change the world on assisted dying today, but are trying to focus on a humane amendment that would improve the lot of a small number of people, with adequate safeguards for disabled people.
With pressures on our National Health Service, many people who are seriously disabled feel vulnerable now, but should this amendment be passed, they will feel even more vulnerable. All of us on the mobile Bench here today in your Lordships’ House fall into the definition explained by the noble and learned Lord, Lord Falconer. It is quite possible that the legislation might open the door to doctors and nurses to feel that people who become disabled are not worth keeping alive. Legislation so often allows things to happen that were not thought about, or meant to happen. That could happen with this amendment, should it be passed today.
Several noble Lords have suggested that this is a narrow amendment. It is not a narrow amendment: it is about assisted dying. We heard this clearly from the noble Lord, Lord Low, a moment ago; he expressed with some passion what he hoped might be his options were he to become seriously and terminally ill. We heard this from a number of other noble Lords as well. This is clearly a question about what this country should be providing through its legal system; that is what is motivating the amendment.
The law may be unclear at the moment and some problems may need to be addressed, but there are many areas which are not clear in the amendment too. Attention has already been drawn to the lack of clarity about what terminal illness means, to the qualifications and nature of the doctors who have to provide the certification, and so on. If the law is unclear, tidying it up is not a reason for turning a major moral traffic light from red to green, to use the striking imagery that has been used. This is a stalking horse for a more fundamental moral question that we need to deal with head on in open and frank debates rather than in a way that almost makes that inevitable but in a hidden and stealthy way.
The right reverend Prelate has pointed to a deep ambivalence running through the debate. That deep ambivalence is about whether the debate is fundamentally, as the noble Baronesses, Lady Warnock and Lady Jay, suggested, about a relatively narrow change in the law; one that would clarify where people stand when they attend with a beloved relative to take part in a ritual of assisted dying. It is also and has clearly been shown to be, as the right reverend Prelate says, a debate about assisted dying in a much broader sense. I will say one word about the argument that this is a relatively narrow proposal to deal with people who are trying to travel with a beloved friend or relative to a country that agrees to assisted dying. If that is correct, there should have been much deeper discussion in this debate about the major institution that has been involved. The noble Lord, Lord Walton of Detchant, pointed in his own remarks to the disturbing record of Dignitas, which has been the major provider of assisted dying, well known outside its own country.
We know that nearly a third of those who have died at the hands of Dignitas since 2002 who are British citizens did not have any form of fatal illness. We know that no psychiatric or palliative recommendation was required before the decision was taken to allow them to die. We know that Dignitas has been accused, wrongly or rightly, of being much more a private company in its ethics and incentives than a public body concerned with bringing to an end the lives of people who wish to die. In other words, it is in many ways an unsatisfactory institution to be given the kind of support that this amendment would give.
If we are arguing about the wider issue, I want to make a brief point that relates to what the noble Lord, Lord Waldegrave, had to say. There is inevitably, at a time of straitened public expenditure, a battle to raise enough money for palliative care. Those members of the Committee who are distinguished proponents of palliative care would make it clear that there are some areas of the country in which such funding is desperately short and others where it is adequate. Deciding what to do in one’s own case depends a great deal on the situation. The United Kingdom has been a pioneer of palliative care. I have visited a number of hospices and one of the most prominent was in my own constituency of Crosby in Merseyside when I was a Member of Parliament. It is amazing what has been achieved—a mood of happiness and contentment reigns in many of them.
One of the people who corresponded with me who for 23 years was a palliative care doctor, and, given the choice between entering a hospice or choosing to die—choices that were equally weighted because both were present and possible—many people would decide to choose a hospice. One of my correspondents who had also been a palliative care medical practitioner in the north of Scotland for 23 years used the phrase, “It is easy for the right to die to turn into a duty to die”. That is what lies at the heart of many of the objections that some of us want to raise.
Like many of my noble friends and many noble Lords in other parts of the House, I oppose this amendment. It has not been sufficiently thought through in terms of the present possibilities for assisted dying. As a basis for a wider principle, it should be eschewed on those grounds and on wider grounds.
I rise not as a lawyer but as a nurse. I wish to say a few things that have not been said this evening. First, I find it strange that we are faced with these amendments in the midst of this complex Bill. It is even stranger since the Government’s action in the Bill strengthens their suicide prevention strategy by dealing with the predatory internet sites, which has already been mentioned.
Government policy is being rapidly implemented to address inequity of end-of-life care across England and Wales, so that everyone, irrespective of diagnosis, can access specialist support. Yet the focus of publicity has been around the plight of a small number of patients, several of whom were not terminally ill, wishing to foreshorten their life by assisted suicide in Switzerland. We have already heard noble Lords’ opinions of Dignitas.
We have to look at whether this is a suitable place for this proposal to be in the law. As a nurse, it is with great sadness that I admit that the care of dying patients has not always been gold standard. Here we are in 2009, with the report of the noble Lord, Lord Darzi, and end-of-life care strategy and qualify markers being introduced. Competencies required for all doctors and nurses are clearly set out. To support the amendment suggests that we are sending more people to Switzerland because the care that we give here is inadequate, and that does the people who live in this country no justice. The House of Lords should have a responsibility for the citizens of this country. The Government have taken steps to move steadily to correct the inadequate distribution of good end-of-life care and we should support that.
I suggest that those who advocate assisted suicide with loved ones accompanying should have the courage to bring a Bill to the elected House. It is irresponsible in my view to introduce such a measure into this Bill. I end with the words of the late Dame Cicely Saunders, which is that how people die remains in the memory of those who live on. We live on but the memory of how people die remains with us.
I start with something that has not been said as yet. As someone who is opposed to the noble and learned Lord’s amendment I thank him for the measured way in which he spoke to it, as this can be a highly emotionally charged argument. However, I reject utterly two of his arguments. First, I suggest with great respect that the noble and learned Lord is deceiving himself if he believes that this is not part of a slippery slope situation. It is, and he must recognise that; the reasons were given eloquently by the noble Lord, Lord Elystan-Morgan, and I can certainly do no better than he. If the amendment is passed it will be seen as an approbation of Dignitas in Switzerland. I reject that point out of hand.
I want to talk more substantially about the noble and learned Lord’s assertion, and the assertion of others, including the noble Lord, Lord Warner, that the present law lacks clarity. I suggest that the present law could not be clearer than it is. Our clear understanding for decades now—unless there is to be a decision in future to the contrary—has been that it is an offence to assist someone to travel to Switzerland or anywhere else to commit suicide. That is clearly understood. It is also clearly understood that, if you do that, you may be prosecuted. It is clearly understood—because the Crown Prosecution Service code test is there for every citizen of this country to see—that you may be prosecuted if, first, there is enough evidence to sustain a prosecution and, secondly, that it is in the public interest for a prosecution to occur. What could be clearer law than that?
The only area of uncertainty is in the consequences of the exercise of personal responsibility. My view, as a Member of this House and a former Member of another place, is that the exercise of personal responsibility is actually rather important, and that we should leave an element of personal responsibility to be exercised by the citizen and not try as a state to legislate for it. I offer your Lordships an entirely non-religious but, I hope, ethical judgment, that it is better to leave a decision of this kind in the sphere of personal responsibility than in an opaque—and, I have to say to the noble and learned Lord, and I shall return to it—pragmatic and poorly drafted criminal defence. In so saying, I offer this: we underestimate in this country, and sometimes we underestimate at our peril, that in our unwritten constitution, one of the greatest protections against arbitrariness and oppression is the discretion of the Attorney-General and the Director of Public Prosecutions to prosecute, or not to prosecute, on the application of the CPS code test, including the question whether it is in the public interest. It has proved to be sound under the stewardship of a number of noble Lords in this House over a very long period, and I prefer it to the amendment on offer today.
I say with respect to the noble Lord, Lord Low, that for me a place of greater safety is with the law that we have and the protection that I have described, rather than relying on this drafting or opinion polls, which by and large have been taken after a number of highly publicised cases. I say, too, that this is not any passing amendment; it has been prepared in a blaze of publicity. Everybody who knows anything about this issue, which is practically everybody in your Lordships' House—I hope everybody knows—knows that there has been assistance on offer, drafting on offer and, believe it or not, even free lawyers on offer to enable a good amendment to be brought before this House. The noble and learned Lord is a former Lord Chancellor; we are entitled to expect in this House that when a former Lord Chancellor places before the House an amendment on a matter of this importance, it will be well considered, well honed and usable. I am sure that the noble and learned Lord would not have presented it if he did not think that.
We heard from the noble Lord, Lord Low, that noble Lords who put their names to this amendment would be willing to amend it, if it was thought that it could be made more practicable and useful. I am sure that that is the case—and I take that in the honourable spirit in which it was said. But the starting point is very important, given what we are dealing with. I shall not go through the amendment sentence by sentence, but I want to pick out for your Lordships a number of items from the drafting that frankly make me, as a lawyer, a parliamentarian and someone who has spent his life involved in public policy, shudder.
First, the amendment contains a reference to approbation being given by two medical practitioners. From 1989 to 1999, I was a lay member of the General Medical Council. I sat on its conduct committee and its health committee. We heard processions of medical practitioners before those committees who had done outrageous things. We heard of private clinics, some of them in highly regarded streets of London, Manchester and Liverpool, that set themselves up to provide bogus cosmetic surgery, for example, from which to make money. I see absolutely nothing in this amendment that begins to approach the protection that the public need in this life or death situation. We have heard mention of Dr Shipman, but—and I am sorry to say this to the noble Lords who are doctors in this House, who are all extremely distinguished—there are many, many rogues in the medical profession. I had better say that I am sure that there are in the legal profession too.
Then we have the phrase “independent of each other”. What on earth does that mean? Where did it come from? Does it mean that they work from different premises, or does it mean that two members of the Royal College of Physicians would not be allowed to give opinions in the same case? It is so broad as to flash up the twos and blues of danger in its drafting. I am astonished that the proposed new clause has reached this point without that kind of problem being addressed.
Then there is the phrase, “in good faith”, used about the doctors. That really gives the game away, does it not? I do not know why it is there, as it is one of the most tautologous phrases that I have ever seen in a piece of statutory drafting, unless its purpose is to confirm in our minds that, among two entirely independent practitioners there will be some of bad faith. Well, amen to that—I am afraid that I agree.
Then there is the question of the independent witness, chosen by the person who wishes to die. People in that position can be so easily persuaded that a person who is not really independent is to be seen as independent. Subsection (3) of the proposed new clause says:
‘Independent witness’ means a person who is not … likely to obtain any benefit from the death of T”.
That does not mean that they can obtain no benefit, which raises the prospect that independent witnesses may indeed turn out to be beneficiaries from the death of the person concerned. Excluded from independent witnesses are a “close relative or friend” of the person concerned, but that does not exclude the partners of the close relative or friend.
I give those as examples of a clause that really does not bear serious legal or ethical examination. My final conclusion is, as was said by the noble Baroness, Lady Emerton, that if we are to address this issue in a serious way, it has to be as a piece of whole legislation. Furthermore, it has to be considered as a piece of whole legislation starting its life in the elected House of this Parliament and going through the democratic procedure provided by this Parliament. The role of your Lordships' House—and it is something that we do very well—is simply to look at the legislation and make it more workable. I believe that it is contrary to our democratic principle that so significant a change in our law should be slipped in as an amendment in a Bill of this kind. I urge your Lordships to go with me into the Lobby opposing this proposed new clause.
I want to flag up a legal point. What do we know about this individual called D who appears in subsection (1)? Is he a friend or relative? The noble and learned Lord, Lord Falconer, plainly thinks that we are talking about a loved one. I ask what is no doubt an improper question. Can the loved one benefit from the death? Are there any words that rule out the loved one benefiting?
Benefits take different forms. It could be a financial benefit or relief from the endless burden of caring and visiting, and that aspect of life. There is nothing to exclude benefit from coming to D. Is that why subsection (1)(a) of the proposed new clause states that,
“the act is done solely or principally for the purpose of enabling or assisting T to travel”?
What is the adverb “principally” doing unless it opens the door to some other motivation, which could be financial?
At the end of the day, what is the likely tendency of this amendment if carried? I agree with those who say that the likely tendency is a green light for a view about what is acceptable in respect of suicide. Suicide can be assisted. At the moment we have one route, which involves travelling abroad. But it will become an acceptable concept once it has been passed in the Lords and, let us suppose, adopted in the Commons.
I want to put this consideration to your Lordships. What do we know from what we read, the people we meet and the world we have moved in for many years about the quality of family care and support in this country? We have all visited countries where disabled people live in the family and are not sent off to homes. We have a rather different attitude from the Victorian age. Many people live alone. Their families do not support them. My perception is that families are broken up here compared with many other countries in the world. What can we expect families to do? What is the probability over the vast range of the population 10 years from today if we have an enactment like this? To my mind, it is inevitable that people will be pressurised into signing up for death.
The argument that I used with the Bill introduced by the noble Lord, Lord Joffe, which I still believe to be true, is that elderly people can take a hint. It costs a lot of money to keep people in a home and pay the weekly or monthly bills. It costs a lot of money to have a carer at home. Meanwhile, daughters, sons, grandsons and granddaughters cannot afford university fees and cannot pay the mortgage, and there is granny carrying on a useless life in some home or hospice. I fear that this new clause will be used to pressurise people into signing up to an unwanted death.
I would like to go back to the beginning. Only 115 people have gone to Switzerland: that is not a huge flood of people. I would imagine that they know what Dignitas is like. People do not make decisions to go to such places without finding out about them. I am sure that it is not perfect, but as those people have been given no option, it is the only place they can go to.
We heard about Dr Anne Turner. I watched that film and I hope that your Lordships also watched it. One had to keep a box of tissues by one’s side when watching that film. There was no way that there was any problem of pressure; in fact the pressure, as has been stated, went the other way. The children did not want their mother to go. The older two children accepted it more easily, but the youngest one was distraught. However, they went with their mother because she was a doctor and she could tell them what was in store for her.
She is not alone: there are many people who know—and their doctors know—what is in store for them. It is not about being hastened to slip away. We have heard that death diminishes us and all the rest, but every one of us here is going to die. I do not believe that all of us are so sanguine about lingering for months and years and not being able to do anything. Even if we were in one of the hospices of the noble Baroness, Lady Finlay, we would still be lingering. Is that what we want? I would not like that. I speak only for myself. If any of your Lordships would like to spend your last months or a year in a hospice, that is your choice. My choice is not to do that. I would like to give effect to my choice. I am an individual and I should have control over my death as I have control over my life.
Medicine has made such huge strides. A lot of medical people like to keep everybody alive much longer than they used to. Now we are being told that they are killing people off, but they are letting people die a natural death instead of putting them on antibiotics when they cannot do anything. Their hearts keep beating and they do not have infection so they keep going. There are so many cases like that. I do not think that that is the future we want.
I have to say a word about disability. As time has gone on, disability has become a much more important issue for society. We can judge our society reasonably well by the way we now think about and care for disabled people. I do not think any one of us would ever want the disabled to be counted with people who take such decisions for themselves. This is a question for me. I am thinking of myself. I could be in a situation where I was going to die and linger in a half life. We have heard that pain can be controlled, but what sort of state are you in when you are getting a cocktail of painkillers?—not a particularly wonderful one. We are also told that there is no double effect and that doctors can tell whether you are given too much or too little, but there is not much point in that for me.
That is how I feel. I want the right to be able to go to Switzerland and consult my family and friends. If two doctors told me that I was going to die badly from whatever I had—not just old age—what would be wrong about going to Switzerland? That is the way I feel, and I am sure that other people in this Committee think about these things carefully, because this is what is in store for all of us.
I support this humane amendment because it is about preventing suffering—not the suffering of the terminally ill patient who goes to be assisted to die; this new clause seeks to prevent the suffering of their loved ones. The loved ones go to Switzerland or wherever because they love the terminally ill person. It is against their instincts to help their father, wife or mother to die, but they believe that they cannot let them die alone and they go with them to a country where it is lawful. That is what the amendment seeks to achieve. It is, as has been said, a very narrow amendment. It talks only about clarifying the law and protecting some of the terminally ill people who might otherwise have gone overseas to be assisted in dying. It is not about the decriminalisation of assisted dying. So much has been said about that in the debate, which has focused in many ways on assisted dying, that I would like to touch on some of the points that have been made against it. I do so not to promote the Bill that I originally introduced, but to deal just with errors of fact and approach that have emerged during the debate.
It is naturally impossible for the opponents of the amendment to provide direct evidence of the dangers of a slippery slope, which they allege the amendment would pose. Accordingly, they must rely on conjecture, speculation and, in some cases, their own experience of what they are totally confident will happen. However, because there is no direct evidence, surely it makes good sense to go to a country where assisted dying has been legal for 10 years, and to explore what is happening there. Is there indeed a slippery slope? Let me tell noble Lords the facts of the latest annual report of the Oregon public health department, which relates to the years 1998 to 2008. It shows that in 2008 there were 50 assisted deaths in Oregon, representing 0.2 per cent of total deaths. The previous year there were 49 deaths, and 48 deaths the year before. The year before that there were 47—hardly a slippery slope. The report also states that the Oregon medical board found no violation of good faith compliance with the Act. There is clearly no evidence whatever of a slippery slope in Oregon, so the question that the opponents of the amendment need to answer is: why should it be different in England and Wales? The noble Lord, Lord Carlile, says that there are scoundrels among the medical profession in this country. That may be so, but presumably there are scoundrels in all professions everywhere and this has not led to slippery slopes.
Talking about Oregon, I come to some of the facts. The noble and learned Lord, Lord Mackay, says that the amendment is unworkable. I was with him and the Select Committee in Oregon. The law there, on which the amendment is to some extent modelled, worked perfectly well. I think nine groups testified to the Select Committee, including the nursing association, the hospice association—a medical association that was neutral on the issue—the government department and the hospitals. Seven or eight groups out of nine felt that the law was working satisfactorily. The noble Baroness, Lady Finlay, talked about doctor shopping in Oregon and told us about the extraordinary number of prescriptions issued by particular doctors. If you read the Oregon public health department’s 2008 report, you see that 59 physicians wrote the 88 prescriptions that were issued, which does not sound very much like doctor shopping to me. The noble and learned Lord, Lord Mackay, mentioned that in Oregon there were a number of terminally ill patients who received prescriptions and did not exercise them. The evidence that we heard in Oregon was to the effect that this was so. Those patients who had prescriptions felt that, when they received their prescription, an enormous load was lifted from their shoulders because they knew that, if things got out of control, they could end their suffering by ending their lives.
The noble Lord, Lord Walton, spoke about his Select Committee finding that it was totally against euthanasia and assisted dying. There was an intervening Select Committee, which heard evidence from everywhere in the world where assisted dying and euthanasia were legal, and did not come to the same conclusion. We have heard much about safeguards. There were many safeguards in the several Bills that I have introduced. Those were Bills with a much wider remit than the present very modest amendment, and where opponents would argue that the safeguards were insufficient. I would go away and come back with new safeguards, only to be told that these new ones were insufficient, and so on. Then I posed the question of which safeguards would the opponents suggest including. The answer, I was told, was that no safeguards would ever be sufficient—clear evidence of a very open mind.
The noble Baroness, Lady Kennedy, talked about a cultural shift in the law. For hundreds of years, there was strong opposition to decriminalising suicide as its criminalisation was considered to be an essential law. In 1963, after all that opposition over so many years, the law was changed. If the message would be sent out to disabled people that their lives are not valued, as has been said by many Peers, why was suicide decriminalised? Surely that sent out the same message as that which, it is alleged, is now being sent out by legislation on assisted dying and, indeed, by this amendment. There is no intention to treat disabled people in such a way as to breach their human rights, or suggest that they are less worthy of care and attention than anyone else. The noble Baroness, Lady Campbell, said that I told her that I wanted to help disabled people. That is only part of what I said. I said that I wanted to help all people, and that I thought disabled people should have the same right to make decisions about their lives as every person who is able-bodied. I always understood that the battle for the rights of disabled people is for them to have equal rights.
I listened with great respect to everyone who spoke against the amendment. My name was mentioned several times, so I am entitled to raise the points that I wish to make. I come back to safeguards. The noble Lord, Lord Walton, gave evidence to the Select Committee. He was asked what further safeguards he thought could be inserted in the Bill. His answer was that he could think of no further safeguards. We have a simple amendment before us concerned with the prevention of suffering. The Committee should focus on the fact that we are talking only about people who are acting out of love and affection for the people whom they are accompanying to Switzerland or elsewhere in order to give those people whom they love care and support when they make their very final decision.
The noble Lord, Lord Elystan-Morgan, said that he was sure that, if this amendment were passed, assisted dying would inevitably be legalised. I say to him with respect that whether the amendment is passed or not is not relevant to the final decision that will be taken. In a democratic country, where 80 per cent of the population support assisted dying, it will eventually be decriminalised.
I will be brief because I suspect that the feeling of the Committee is that we should now move quickly to a decision. The noble Lord, Lord Joffe, was right to remind us that we had a full Select Committee inquiry looking at assisted dying. In fact, there were 246 Hansard columns and two volumes of 744 pages and 116 pages respectively, 15 oral sessions, 48 groups or individuals giving evidence, with 88 giving written evidence, 2,460 questions asked and the committee receiving 14,000 letters. Under the distinguished chairmanship of the noble and learned Lord, Lord Mackay of Clashfern, that committee delivered a report to your Lordships’ House. When we voted three years ago by a majority of 48, with 100 votes to 148 votes, the House decided against permitting assisted dying. It decided against taking what the noble Lord, Lord Joffe, described as the first step. I urge the Committee again tonight to have at the heart of this debate something that the noble Lord, Lord Carlile, identified during that previous debate—public safety and protection. It seems to me that above all the other considerations that many of us will have, such as resources, spiritual questions and so on, public protection and safety are crucial.
I welcomed this Bill at Second Reading—I set out then my substantive arguments against assisted dying and euthanasia and I have no intention of repeating them—because of what it does to reform the coroners service in the light of the 226 patients who were killed by Dr Harold Shipman. As my noble friend Lady Finlay said, those death certificates were signed by second doctors—the very point that we are being urged to consider today. I know that many noble Lords do not agree with me on some of the beginning-of-life issues—I would not expect them to—but we should think back to the 1967 debates. The noble Lord, Lord St John of Fawsley, is present. He spoke in another place during those debates, as did the noble Baroness, Lady Knight, who was present earlier. During those debates many warnings were given about how we could end up with doctors simply stamping certificates in order to agree things. That is precisely what happens today. Seven million abortions later, surely no one can doubt that that early decision, which was taken without due and proper consideration, has led to unimaginable consequences. Therefore, I simply urge that, before we take an enormously important decision of this kind, we give it proper thought and reflection. Indeed, the Director of Public Prosecutions, Sir Kenneth Macdonald, whom the noble and learned Lord, Lord Falconer, quoted in his introductory remarks, said precisely that—that there should be a profound debate and widespread public consultation before any change is made in the law.
As regards public protection, I refer your Lordships to a report in the Guardian on 21 June, which stated that the Guardian had obtained a list drawn up by Dignitas revealing the medical conditions that had driven 114 Britons to end their lives at the centre for euthanasia in Switzerland. Professor Steve Field, chairman of the Royal College of General Practitioners, said:
“I’m horrified by this list … I’m concerned because I know that many of the conditions outlined are conditions patients live with and can live with for many years and continue to have productive and meaningful lives”.
Dr John Saunders, chair of the Royal College of Physicians ethics committee, said:
“The list does suggest that Dignitas is cavalier in arranging for people to end their lives”.
As recently as last week at its annual conference in Liverpool, the BMA voted against any change in the law, putting it in line with all the royal colleges, which are opposed to any change in the law. Dr Tony Calland, chairman of the ethics committee of the BMA, said:
“This list raises considerable concern … To go off and commit suicide simply on the basis of these conditions would be premature and unreasonable”.
I refer your Lordships to the statement issued this morning by Professor Ian Gilmore, president of the Royal College of Physicians, and several other distinguished physicians. It states:
“The amendment as drafted provides insufficient guidance to doctors who might be asked to assess applicants for assisted suicide. It does not define terminal illness or capacity with any precision and the requirements prescribed for assessment are insufficiently rigorous to protect vulnerable patients seeking assistance with suicide”.
I stress “insufficiently rigorous”—the point that the noble Lord, Lord Carlile, made earlier.
As my noble friend Lord Walton of Detchant said, in 1994 the Select Committee of your Lordships’ House reported that,
“dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole”.
We heard from my noble friend Lady Campbell of Surbiton and the noble Baroness, Lady Masham, about the position of disabled people. I think of my childhood experience when an uncle who had returned from the Second World War in a state of deep depression took his own life. Consequences have followed within the family in all the generations since then. These are not just individual decisions; they affect many others. We would do well to think much harder before agreeing to incorporate this amendment in the Bill. I urge your Lordships to reject it.
I rise merely to say that we on these Benches will vote individually. It will not surprise your Lordships to hear that. The noble Lord, Lord Alton, referred to his experiences. Each of us has lifetime experiences that I am sure will greatly influence the way in which we will vote tonight. I shall vote against the amendment but I will not weary your Lordships with my personal experiences.
I, too, will speak briefly from these Benches. I merely echo what the noble Lord, Lord Thomas of Gresford, has said—namely, that I will make my own decision. I will vote against the amendment if the noble and learned Lord wants to press it to a vote. It is for each Member on these Benches to make up their mind as they so wish.
The Committee has been fortunate to have been able to listen to an outstanding debate on a matter of the highest importance. The debate and amendment raised complex and profound issues. This afternoon we have heard, to our advantage, passionately held views on all sides. For this, I congratulate my noble and learned friend on tabling this amendment. However, as I indicated at Second Reading, it is the Government’s view that the Coroners and Justice Bill is not the appropriate vehicle to liberalise the criminal law as it applies to assisted suicide. I note from their letter in the Daily Telegraph on 29 June that the most reverend Primate the Archbishop of Canterbury, together with the Archbishop of Westminster and the Chief Rabbi, share that view. That said, my noble and learned friend Lord Falconer of Thoroton and his supporters are absolutely entitled to table this amendment and to ask the Committee’s view on it if they choose to do so. It falls to me to briefly set out the Government’s position.
As I indicated in the debate on the previous group—in fact, I did not, because the amendment was not moved—the provisions in Clause 49 do not change the scope of the current law. Our aim is to simplify the law by bringing together two existing offences and to modernise the language to add clarity and understanding. Assisting or attempting to assist suicide would remain illegal. In contrast, it is our view that this amendment seeks to make a decisive shift in the law.
The Government believe that any change to the law in order to decriminalise assisted dying is a matter of conscience and for Parliament to decide. As such, the Government do not of themselves have a position on the moral and ethical issues thrown up by the amendment. It follows that, on our side, too, this is a free vote, as it will be—and should be—across the Committee. However, taking a neutral position as the Government do on an issue of conscience is not the same as having no view. The Government must be concerned with the fitness for purpose of any legislation proposed. It is with that in mind that I turn to the detail of the amendment.
Everyone knows what my noble and learned friend Lord Falconer is seeking to do in Amendment 173; I do not need to go through that. As the law is commonly understood, an offence under Section 2 of the Suicide Act is committed even where the suicide occurs abroad but only if aiding, abetting, counselling or procuring takes place in this country. However, aiding or abetting abroad of suicide abroad is wholly outside our jurisdiction. So, in our view, proposed new subsection (4) is unnecessary, as indeed my noble and learned friend said in answer to the noble Lord, Lord Elystan-Morgan.
My noble and learned friend has suggested that the current law is not sustainable given that the Crown Prosecution Service has failed to prosecute over 100 cases where people have been given assistance to travel to the Dignitas clinic in Switzerland. However, in its judgment in the Purdy case, the Court of Appeal referred to evidence given by the Crown Prosecution Service that, as far as it could ascertain, only eight such cases were ever referred to it and all but one of those failed to meet the level of evidence required for a prosecution. Since that evidence was produced, one further case has been considered and not prosecuted on public interest grounds. As noble Lords will know, that case concerned the very sad story of a young man who, although tragically injured, was not in fact terminally ill. We are not talking about a long line of cases where the CPS has decided that there was prima facie evidence of an offence but decided not to prosecute.
Everyone understands the motivation behind this amendment. We have nothing but sympathy with those who are faced with the sort of difficult choices that none of us would ever want to make. However, even the most limited step in this area is an important one—a crossing of a clear line.
Setting aside the wider ethical issue, we have concerns about the proposed clause as drafted. My noble and learned friend dealt with the term “terminally ill” but we still have some concerns about that definition and, indeed, about the definition of “capacity” and who would constitute a close relative or friend.
Moreover, while the debate on assisted suicide as a whole is, rightly, one of conscience, the Committee will want to reflect carefully on a number of important policy questions thrown up by my noble and learned friend’s amendment. Can we be sure that legislating to allow assisted suicide in these particular circumstances would not set an awkward precedent? Would we not, in effect, perhaps be creating a situation where there is one law for those who can afford to go abroad for an assisted death and a different one for those who cannot? For these reasons, the Committee will wish to consider whether legislating to take advantage of other countries’ laws is a sensible way in which to address this very complex issue.
There is one other suggested undesirable consequence of the amendment. If the amendment were passed, in the case of persons assisting others to travel abroad for suicide, the criminal law would appear to operate in different ways depending on where the suicide occurred. It would remain the case that a person who assisted the suicide of another in England and Wales would still be guilty of an offence. A person who assisted another to travel abroad for a suicide in a third country, such as Canada, where assisted suicide is unlawful, would also be committing an offence. However, a person who assisted another to travel abroad to Switzerland, where assisted suicide is lawful, would not be committing an offence under the terms of the amendment. That would be a rather arbitrary outcome.
There is no doubting the commitment of noble Lords to this issue or the compassion that drives them and others who are similarly committed to changing the law in this area so that terminally ill, if not other, people have the right to seek assistance to die. Nor is there any doubt that there are others who are equally committed to opposing such legislation. Even if one accepts that the law should change, there is no consensus on where a line should be drawn and what safeguards should be in place and for whom.
I end by reminding the Committee that the Government’s view is that this Bill is not the appropriate vehicle for what would be a shift in the law on assisted suicide. We are the better for the debate today, but I ask my noble and learned friend to consider withdrawing his amendment. If he wishes to pursue the matter thereafter, I respectfully suggest that he do so through a Private Member’s Bill in the next Session. This subject is certainly worthy of at least that. As I have said, if he seeks to test the views of the Committee, these Benches will have a free vote on what is fundamentally a matter of conscience.
I am grateful to every Member of the Committee who has participated in this incredibly powerful debate. I go back to where I started—the current position. It is not unlawful to go abroad for assisted dying in a place where assisted dying is lawful. People go abroad to do that. Although huge passions were expressed during the debate, I never detected at any stage that anybody in the Committee wanted to prosecute the well intentioned person who went with their loved one to help them in their assisted dying; I did not get that flavour from anyone’s expressions.
I also felt that practically everybody in the Committee was concerned to ensure proper safeguards against two situations—where the person who went for the assisted suicide was not terminally ill and where they were being overpersuaded to go. The current situation is that the DPP has made it clear that he will not seek out these cases to investigate. If the cases come before him, he will ensure that they are properly investigated and, as long as he is satisfied that there is good motivation, he will not prosecute. That is even though on two occasions, as my noble friend Lord Bach said, there was evidence.
That sensible signal that the DPP will not prosecute in those cases, dependent as it is on public interest, has two important impacts. It indicates that he is not prepared to apply the criminal law to its full rigour at the moment, because nobody has the stomach to give effect to the law in those cases—quite correctly. When the law was introduced in 1961, it never had these cases in mind. The DPP has had, in effect, to change the law to make it work properly.
The safeguards in the amendment would have two registered, qualified doctors and an independent witness looking at the matter. The noble Lord, Lord Carlile, and others suggested what a large number of unsatisfactory doctors there were. Of course there are, but no doctors look at the matter at the moment. My amendment would ensure that two did before somebody went abroad. That must be better than the current position and it would help to deal with the situation where people who were not really ill at all went believing that they were. The noble Baroness, Lady Finlay, said that the two doctors would never have picked up the five cases where there was no underlying illness that would justify going. Why not? They probably would have, but I can tell your Lordships one thing—there would be more chance of it being picked up with two doctors than without.
The debate has ranged far and wide and has addressed a range of philosophical issues. I have two points. First, I do not believe that the DPP, in saying that he will not prosecute where good motives are involved, has either undermined the position of disabled people in this country or put them at greater threat. Secondly, I believe that, if one introduced the amendment, it is much more likely that the abusive cases and the cases where there was no underlying illness would be caught. It is a much more effective way of dealing with the issue than relying on prosecutions, which never occur. The DPP has given the clearest indication that he will not prosecute.
Listening to the debate, I have wondered carefully whether I should test the opinion of the Committee. I am sure that I could improve on the safeguards but, having listened carefully in particular to the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, about what is alleged to be wrong, I think that ultimately there was not sufficient detail, although I am more than willing to listen before Report. I am minded to test the opinion of the Committee.
Clause 50 : Encouraging or assisting suicide (Northern Ireland)
Amendment 173A not moved.
Clause 50 agreed.
Clause 51 agreed.
House resumed. Committee to begin again not before 9.17 pm.
Human Fertilisation and Embryology (Special Exemption) Regulations 2009
Motion to Approve
My Lords, I shall speak to the draft Human Fertilisation and Embryology (Appeals) Regulations, the draft Human Fertilisation and Embryology (Special Exemption) Regulations and the draft Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order. I will describe briefly each set of statutory instruments, starting with the appeals regulations.
The Human Fertilisation and Embryology Authority licenses IVF and embryo research centres. The HFEA licensing regime is set out in statute by the Human Fertilisation and Embryology Act 1990, with regulation-making powers to add detail to the licensing system. In 2004, the Government announced a review of the 1990 Act, which resulted, after interesting and valuable debate, in the Human Fertilisation and Embryology Act 2008. The 2008 Act updates and amends the 1990 Act and, as part of this, updates the licensing and appeals regime.
The 2008 Act requires regulations to be made to set out the details of the constitution of an appeals committee and the process by which an appeal will be heard. The appeals regulations will replace existing regulations that deal with the current appeals processes. The draft appeals regulations aim to ensure that the committee is as independent from the authority as it can be, and that a clear, robust appeals process is set out. There are requirements under common law and the European Convention on Human Rights for appeals procedures to be impartial and fair, and I believe that these draft regulations set out such a procedure.
The draft appeals regulations are in four parts. Part 1 sets out the commencement date for the regulations, and definitions of the terms used. Most provisions in the draft appeals regulations will be commenced on 1 October 2009. However, regulations 4 and 6, and the relevant definitions under regulation 2, will be commenced the day after the draft regulations are made. These provisions relate to the constitution of the committee and the appointment of members, and enable the HFEA to appoint and train members of the appeals committee so that the committee is in place on 1 October.
Part 2 of the draft appeals regulations sets out the constitution of the committee. As the appeals process is a legal procedure, the regulations provide that both the chair and deputy chair must be legally qualified. The appeals committee will have seven members and must have a lay majority. A non-lay member—a person with a professional interest—is defined as either a registered medical practitioner, a person concerned with keeping or using gametes or embryos outside the body, or a person who is directly concerned with commissioning or funding any research involving such keeping or use of gametes or embryos. This is the same definition as in the 2008 Act. The quorum of the committee will be three, which includes the chair or deputy chair and at least one person with a professional interest.
The committee is prevented from sitting with an even number of members, and voting is by a simple majority. Members are prevented from abstaining to ensure that a tied vote does not arise. This provision was introduced following the consultation process. The draft regulations specify who cannot sit on the committee, including current and former HFEA members and staff, current licence holders and current persons responsible under a licence. This aims to ensure that the committee is as independent as possible. The draft regulations prevent licence holders and “persons responsible” working in a licensed clinic from sitting on the appeals committee, but do not restrict who may be appointed as an adviser to the committee. Therefore, should the committee require advice from persons who are excluded from being members, they may be appointed as advisers. Provision for the committee to appoint advisers is made in Part 3 of the regulations. I am confident that, in enabling the committee to appoint expert advisers, we have the correct balance between the maximum independence and objectivity of the committee and its access to expert advice.
Part 4 sets out the procedure by which an appeal is determined. I will draw attention to a typographical error in the regulations. Regulation 21(5) refers back to paragraph (3) of that regulation. It should refer to paragraph (4). This will be amended in the final version of the regulations. Part 4 sets out the detail of what documentation the committee will require and when it must be provided. A determination may either be by reference to the papers or at an actual hearing. The draft regulations introduce case management meetings, which may be at the request of either party, to allow the chair to make preliminary rulings on the admissibility of evidence and points of law. This will streamline the appeals process by enabling early agreements on such matters to be reached.
Part 4 goes on to provide for witness evidence and sets out the powers held by the committee to summon witness evidence. This part includes the requirements to ensure that the determination is recorded and made available to both parties. The record will include any advice that the committee receives from an adviser, whether given during the deliberations or the hearing.
I now turn to the special exemption regulations. The Human Fertilisation and Embryology Act 1990 prohibits storing gametes and creating, keeping or using a human embryo without a licence from the HFEA. This is a key principle of the 1990 Act and has been retained following the update of the legislation by the Human Fertilisation and Embryology Act 2008. However, there are two exceptions to this principle, which were set out in regulations made in 1991. These regulations will be replaced by the draft Human Fertilisation and Embryology (Special Exemption) Regulations.
These draft regulations do not represent a change in government policy. It has been necessary to re-make these regulations in consequence of the provisions of the 2008 Act, which update the definitions of “gametes” and “embryos” in the 1990 Act and which provide for the regulation of human admixed embryos. It was also necessary to make some minor and technical amendments to the drafting of the regulations.
The draft Human Fertilisation and Embryology (Special Exemption) Regulations set out the cases in which embryos may be examined or kept, and gametes may be stored, without a licence from the HFEA. There are some circumstances where gametes and embryos may be kept for purposes other than for providing fertility treatment or embryo research; for example, during the course of a criminal investigation into alleged breaches of the Human Fertilisation and Embryology Act or the storage of sperm for teaching purposes. The 1991 regulations were made to set out exceptions to the HFEA licensing requirements in these very specific and limited situations. In drafting the 1991 regulations, the Government wanted to ensure that these regulations could not be used to circumvent the stringent controls set out in the 1990 Act. The same applies to these draft regulations.
The first exception relates to the examination and keeping of embryos, and the storing of gametes in the course of the investigation of an offence under the 1990 Act, or in relation to proceedings for such an offence. This exemption applies to gametes or embryos that have been seized by the HFEA or which have been transferred to premises where they are held on the instructions of the authority.
The second situation that the regulations provide for is cases where gametes are being stored for use in research. The regulations set out three purposes for which a person may store gametes without a licence from the HFEA. These are where they are stored for the purpose of research on gametes, for the development or testing of pharmaceutical or contraceptive products, or for teaching that requires the use of gametes. However, a storage licence will still be required if certain activities are intended to be carried out, including the use of gametes in treatment services, the mixing of eggs and sperm or bringing about the creation of a human or human admixed embryo. It is important to note that the regulations do not remove any licensing requirement relating to how the gametes are used; they only provide exceptions to the requirement for a storage licence.
The regulations do not reflect a change in government policy. They are being re-made in consequence of the provisions in the 2008 Act which update the provisions of the 1990 Act in light of scientific developments, and to make some minor drafting changes. We will continue to keep the regulations under review in light of further developments. As your Lordships may be aware, it was necessary for the Department of Health to withdraw an earlier version of the regulations in order to correct an oversight. We regret that this was necessary but note the Merits Committee’s acknowledgement that the department acted quickly to correct the draft regulations. The 1991 regulations worked. They did what they were supposed to do and we do not see any further reasons for which exceptions should be made. For these important reasons we have not updated the policy in these regulations but simply re-made the regulations with the same exceptions.
I shall finally and briefly discuss the consequential and transitional order. The 2008 Act updates the 1990 Act. The draft Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order makes provision to ensure that the changes made by the 2008 Act are reflected in other primary and secondary legislation. The order consists of four articles and four schedules. Article 2 and Schedules 1 and 2 make consequential amendments to reflect the parenthood provisions introduced by the 2008 Act. In particular, the 2008 Act introduced the concept of second female parents, which enabled the female partner of a woman to be registered as the legal parent of a child born following assisted conception treatment with donor sperm in certain circumstances. The amendments in these sections ensure that a woman who is a parent by virtue of new provisions has the same rights and obligations as any other legal parent of a child.
Article 3 and Schedule 3 contain consequential amendments to other pieces of secondary legislation. Such amendments are necessary to ensure that the secondary legislation appropriately reflects the updated definitions, terms and provisions in the 2008 Act. Article 4 and Schedule 4 contain transitional and saving provisions. These ensure that the process for the transition to new provisions, as introduced by the 2008 Act, is as clear and straightforward as possible. I commend the regulations to the House. I beg to move.
My Lords, I thank the Minister for introducing these three sets of regulations and for the opportunity given to me last week to be briefed on them by his officials. That briefing served to resolve a number of questions that I would otherwise have posed in this debate, so he will be pleased to hear that my remarks this evening will be quite short.
I begin with the special exemption regulations which, as the Minister said, provide for two exceptions to the rule that anyone who keeps or uses human embryos, or who stores human gametes, may only do so if he first obtains a licence from the HFEA. Regulation 2 creates an exemption in the case where an embryo is kept or a gamete is stored in connection with the investigation of an offence under the 1990 Act, or in connection with proceedings for such an offence. Regulation 3 creates an exemption where gametes are stored for the purposes of research on gametes, developing or testing pharmaceuticals or contraceptives, or teaching—as long as the gametes are not being stored for various other specified purposes.
I am, in general, content with these regulations, but have a specific question relating to Regulation 2. The Act as amended is constructed in such a way as to require a licence to be issued by the HFEA whenever a human embryo or a human admixed embryo is stored or kept, unless regulations provide otherwise. It would appear from the wording of Regulation 1 that the exemption created under Regulation 2 extends only to the keeping or examination of human embryos and the storing of human gametes. There is therefore a puzzle in my mind in relation to human admixed embryos; the storage of human admixed embryos appears to be expressly excluded from the exemption.
I should like to know whether this understanding is correct. If it is, it follows that there are no circumstances in which a human admixed embryo may legally be stored without a licence—even where such an embryo was being seized by the HFEA in connection with the investigation of an offence. I do not understand why this should be. It seems odd: one would naturally assume that, under the circumstances envisaged in Regulation 2, where a crime was being investigated, there would be just as much reason for the HFEA to seize, store and examine a human admixed embryo as to seize, store and examine a human embryo. Any operation of this nature would need to be done with speed. How practical would it therefore be for the authority to issue a licence to someone for the storage of a human admixed embryo before transferring the embryo to that person?
When these regulations were first published in draft, certain errors in them were pointed out by the Merits Committee, as the Minister said, and the drafts were withdrawn. In 21st report, the committee made the following comment:
“The revised draft appears to broadly meet the concerns expressed. However, the definition is complex, and we suggest it should be kept under review to ensure it maintains the policy intention in the light of technological developments”.
I should like to endorse that suggestion, not only because of the need to keep alert to technological developments, but also because, under the 1990 Act as amended, the Secretary of State has the power to make further regulations altering the definitions of human gametes and embryos, and human admixed embryos. So I hope the Minister agrees with the recommendation of the committee.
I turn now to the appeals regulations. First, in general, I welcome the provisions relating to the composition and procedure of the appeals committee. In particular, it is positive that the rules will now prevent members or former members of the HFEA from sitting as members of the committee. It is important that those who determine appeals should be, and be seen to be, independent of the HFEA itself. That visible separation of membership is very much in keeping with the letter and spirit of recent legislation in other areas, such as that relating to the Office of the Health Professions Adjudicator.
The comment was made by certain respondents to the consultation that to exclude former members of the HFEA from membership of the committee might be too restrictive, as it is clearly necessary to have a sufficient pool of expertise on which to draw. However, I am satisfied that the Government have answered that point by highlighting Regulation 10, which provides for advisers to be appointed to the committee. There is nothing to prevent such advisers from being members or former members of the HFEA. That flexibility ought to be enough to allay any fears about the committee's lack of access to relevant expertise.
I support the idea of the committee having a legally qualified chair and deputy chair. Respondents to the consultation were also supportive of that because the committee is quasi-judicial in nature, and the arrangement would reduce the likelihood of court action. I agree with that. However, it is interesting to hark back to the debates that we had last year on the Health and Social Care Bill, when we argued about whether the Office of the Health Professions Adjudicator should or should not be required to have a legally qualified chair. The Government resisted the idea, which I and other noble Lords proposed, that that should be a requirement, and instead felt it right to allow the OPHA to appoint a legally qualified chair to a particular panel if it wished.
The noble Baroness, Lady Thornton, reminded us at the time that, with the exception of the disciplinary committee of the Royal Pharmaceutical Society of Great Britain, all the professional regulatory bodies currently carrying out adjudication use lay and professionally qualified chairs, supported by a legal assessor. She said:
“While we agree that there may be merit in having legally qualified chairs for complex cases, all the evidence shows that lay and professionally qualified chairs are perfectly capable of doing a good job in these and any other case. Within the system of professional regulation there is strong reliance on lay and registrant involvement as chairs and panel members. Lay involvement is not unique to this jurisdiction. We need to look only at the contribution of the 30,000 lay magistrates in England and Wales, who deal with 95 per cent of all criminal cases, to understand the value of lay involvement”. —[Official Report, 14/5/08; col. GC 373.]
I would be interested to know from the Minister why the appeals committee of the HFEA is thought to be so very different from the Office of the Health Professions Adjudicator in that sense.
I have one more question for the Minister. The response to the consultation promised that the draft regulations would be amended to prevent members of the appeals committee abstaining from voting. The regulations indeed reflect that undertaking. However, what precedent is there for tying the hands of committee members in that way? I of course understand why it should be thought desirable to avoid a tied vote, but it strikes me as odd that the discretion of panel members to vote or not to vote should be fettered by legislation. That has the appearance of bowing unnecessarily to the forces of expediency. I would be grateful for the Minister's comments on that, and I look forward to his reply.
My Lords, I thank the noble Lord, Lord Darzi, for the eloquent way in which he introduced the regulations. I, too, put on record my thanks to the officials who briefed me and the noble Earl, Lord Howe, last week. It was a most helpful meeting. I have a few questions and points I wish to raise.
I will deal with these regulations in the order in which the noble Lord, Lord Darzi, introduced them. The first regulations deal with the appeals committee of the HFEA. Those are important regulations. They lay down in express terms the mechanisms for appeal. Those were not included in the 1990 Act. Since then the nature of the issues which the HFEA has to consider has become increasingly complex. In recent years, a number of HFEA decisions have been challenged and it is right therefore that the appeals procedure should be placed on a similar basis to that of other organisations such as the GMC and the Royal Pharmaceutical Society.
I take a slightly different view from the noble Earl. One of the main reasons why this appeal committee should be structured in the way that it is and should be chaired by someone who is legally competent is that, as I envisage it working, the committee will have to deal with a number of issues in a field where scientific knowledge and ethical questions arise in a comparatively short space of time. This is cutting-edge, innovative work. The more important reason is, however, that, unlike many other areas of medicine, the issue of time can be very important to the people bringing the appeals. Women may have biological clocks running. Therefore the intent behind laying out such a detailed appeals procedure, as the noble Lord, Lord Darzi, said in his introduction, is to minimize the need for people to resort to the courts. Therefore I can see the logic of doing that.
Quite so, my Lords. The procedures to be followed by this appeals committee follow established principles and practices in similar organisations. It is helpful that appellants, witnesses and advisers should have a clear understanding of the procedure to be followed in the event of a dispute.
I have one small technical question. Regulations 17, 18 and 27 spell out the number of days within which certain actions must be happen—notification must be given and decisions must be communicated. Are those working days or are they calendar days? I speak as one who was once caught in the vicious crossfire of a procedure where that point was not clear. It gave people who were already upset about an issue something else to have a fight about. It is a very simple matter but needs to be clarified.
I turn to the special exemption regulations that deal with storage of embryos and gametes without a licence. I understand that this is necessary for the purposes, for example, of investigating a crime. I wonder whether the Government have considered placing a limit on the length of time for which gametes and embryos could be stored in unlicensed storage. It seems to be an open-ended question.
It is not clear from the regulations whether the HFEA continues to have responsibility for safe storage for the duration of the existence of a gamete or an embryo. For example, when an investigation has been concluded, does the HFEA retain responsibility? Will embryos and gametes be returned to the HFEA or does the responsibility transfer and remain with the other authority? I point raise that point because there is considerable concern that we might just be opening a door through which unscrupulous people might chose to walk.
I welcome the regulation that sets out the conditions for the storage of gametes for other purposes. In particular, I welcome Regulation 3(2)(c), which recognises that gametes may be stored for the purpose of teaching. That was the purpose behind an amendment that I tabled during the passage of the Bill, and I am glad that that has been recognised by the Government in the context of the safeguards that are set out in the relevant paragraph, the most important of which is that any gametes stored in that way must never be used for reproduction.
I turn briefly to the consequential amendments order. As I sat down to read these provisions, many of which essentially change other legislation to reflect the decision made by this House on second female parents, I thought that this House would do well to be reminded of what excellent legislation this Act is. Parliament and, in particular, this House should be proud because this order, in its detail, demonstrates just how difficult it has been hitherto for lesbian and gay families to give children the security that other children enjoy as of right. Anyone who reads this order can be in no doubt that the HFEA Act in its effect is serving the best interests of children and their families, and it will give those children stability in a way that was never possible before.
I have two questions to put to the Minister. First, will he explain the purposes of Paragraphs 3 and 4 on page 18 which amend the Private and Voluntary Health Care (England) Regulations and the Private and Voluntary Health Care (Wales) Regulations? It is not clear to me what those amendments are designed to do. Do they mean that private clinics providing fertility services must recognise couples where both people are women? I may be wrong and so I would welcome clarification on that.
Secondly, on the transitional and saving provisions, I understand that the intent of this order is to ensure that treatment and research programmes that were initiated under the current law can continue with minimal disruption to patients. Can the Minister confirm that nothing that was prohibited under the existing law would be permissible under the transitional arrangements? If he could give that assurance, I think that noble Lords would consider that their intentions, as expressed during the passage of the Bill, had been satisfied. I very much welcome these regulations.
My Lords, the noble Baroness, Lady Barker, has just reminded the House that she thoroughly approved of the legislation when it was before us last year. The House will recall that I was fundamentally opposed to it, and I have not changed my view. However, I am, as always, grateful to the Minister for the way in which he, with such clarity, introduced and explained the regulations that are before the House tonight. I shall follow of the remarks made by the noble Earl, particularly about the position of animal-human hybrid embryos and how they are covered by the regulations, especially the dispute that took place in the Merits Committee. Although I did not have the opportunity to meet officials, I met Dr Elizabeth Allan, who made representations to that committee, and I shall pursue some of her arguments in a few moments.
First, I shall touch on the issue of the appeals committee to which the Minister referred. Unlike the noble Earl, I am not entirely sanguine about advisers being appointed to the appeals committee if they are currently or have previously been members of the HFEA. I would not want to misunderstand what the noble Earl said, but I felt that he thought that it was a reasonable principle for people who were or had been employees of the HFEA to be appointed among the advisers, and like the noble Baroness, he would prefer to see a lawyer as the chairman of that committee.
I have reservations about specifying who should be made the chairman of such a committee, and whether it needs to be a lawyer. There are many lay people, as the noble Earl hinted, who could easily fulfil those duties. Certainly they should have rigour and the ability to chair the committee, but sometimes we hand over our own rights to particular disciplines without thinking through the consequences. By specifying that it would never be anyone other than a lawyer would be an error. I am also bothered about the conflict of interest that could arise if someone is currently or has previously been an employee of the HFEA and is then placed in an advisory position on the appeals committee. If they were involved in one of the disputes or making the policy earlier on, the watchdog could be too easily identified with the burglar in this case. We need to ensure that there is never any conflict of interest. I know that that was the purpose underlying the Minister’s remarks earlier, but I want him to say a little more about who the advisers will be. Is he really content that they might have some kind of conflict by virtue of their membership or employment?
My real concerns about the regulations are twofold. First, I have grave anxieties about what seem to be loopholes and, secondly, there is serious concern about the way in which the regulations have come before your Lordships’ House. It appears that the Government’s main intention is to update the 1991 special exemption regulations to take into account the new definitions of gametes and embryos, and to include human admixed embryos, following the updating of the 1990 Human Fertilisation and Embryology Act in the 2008 legislation.
The regulations provide for exceptions to the general rule that a licence is required to keep human embryos and gametes and human admixed embryos. There are two special exemptions: first, Regulation 2 on keeping and examining embryos in connection with offences under the amended 1990 Act; and, secondly, Regulation 3 on storing gametes for the purposes of research or teaching, or for developing or testing pharmaceutical or contraceptive products. I particularly draw attention to Regulation 2, which relates to offences under the Act.
However, Regulation 1 clarifies that embryo and gametes refer to human embryos and gametes. This sets the context for Regulation 2, which relates to
“keeping and examining gametes and embryos in connection with crime”.
This permits the unlicensed keeping and examining of human gametes and embryos in connection with an offence under the 1990 Act. The regulation appears to refer solely to human gametes and embryos, since gametes and embryos are defined as human under Regulation 1. It therefore appears that these regulations do not cover the keeping or examining of human admixed embryos in relation to any offences committed in relation to them. Herein lies my concern and that expressed by the noble Earl.
Paragraph 7 of the Explanatory Memorandum also states that a licence exemption applies to,
“cases where an offence under the 1990 Act is being investigated or proceedings are taking place in relation to such an offence. Embryos may be kept and examined and gametes may be stored without a licence from the HFEA in these specific circumstances. Any such embryos or gametes will have been seized by the Authority or transferred to a place where they are now on the instructions of the Authority”.
Again, since this applies only to human gametes and embryos, it seems as though there is no intention to provide for keeping and examining human admixed embryos for the purposes of investigating offences under the 1990 Act, other than for keeping and examining human gametes or embryos if they were used in the process of making human admixed embryos. However, if there has been an offence in relation to human admixed embryos, the human admixed embryos themselves would need to be examined. Furthermore, many types of human admixed embryo would not use human gametes or embryos in their creation. For example, cloned human-animal embryos created by cell nuclear replacement using enucleated animal eggs and an adult human skin cell would not use either human gametes or embryos in their creation.
Many of the new offences introduced by the 2008 Act into Section 41 of the 1990 Act, are offences relating to human admixed embryos. These offences are serious and include not only creating, keeping or using human admixed embryos without a licence, but also placing a human admixed embryo in a woman, a point to which the noble Baroness, Lady Barker, referred. That appears in Section 41 and new Sections 4A(1) and (2) of the 1990 Act. Noble Lords will recall grave misgivings expressed in your Lordships’ House and felt by vast numbers of the general public about the line we crossed with the HFE Bill. Omissions such as this will heighten, not stem, those anxieties. We cannot expect the public to trust us if the regulator does not enforce the standards that it sets out in the parent legislation. I am sure that all noble Lords would agree that there needs to be a way of investigating a crime effectively and rapidly, such as placing human admixed embryos in a woman. I agree with the noble Baroness about the importance of examining these matters expeditiously.
A mechanism needs to be in place that allows rapid investigation of the offence involving human admixed embryos. I would be grateful if the Minister would clarify whether there is provision in the special exemption regulations for human admixed embryos to be both kept and examined for the purposes of investigating an offence under the Act.
The case of cloned human-animal embryos is particularly helpful to consider, since they are classified as “human” under the original 1990 Act, but as “human admixed” under the 2008 Act. Therefore under the original 1990 Act, they would have fallen under Section 43, which authorises regulations to be made for the keeping and examining of human gametes and embryos in connection with the investigation of, or proceedings for, an offence. They would also have been covered under Regulation 2 of the Human Fertilisation and Embryology (Special Exemptions) Regulations 1991. It would therefore have been possible to keep and examine them without a licence, to investigate an offence under the original 1990 Act. However, owing to their reclassification under the 2008 Act as “human admixed” embryos, Section 43 and Regulation 2 are no longer applicable to them as they deal only with human embryos. Regulation 2 of the draft 2009 special exemption regulations would not apply to them—despite the purpose of these new draft regulations being to update the 1991 regulations specifically to take account of human admixed embryos and changes in definitions of “embryo” and “gametes”.
Regulation 3 relates to storing gametes for other purposes. According to Paragraph 7.4 of the Explanatory Memorandum, Regulation 3,
“allows the storage of gametes without a licence, provided they are only to be used for certain purposes. These purposes are … research on gametes … the development or testing of pharmaceutical or contraceptive products … teaching requiring the use of gametes”.
Paragraph 7.5 states:
“However, even if the gametes are intended for one of the purposes set out above, a storage licence must still be obtained if it is intended that one of the following activities will be carried out … the mixing of live sperm with live eggs … the bringing about of any human embryo … the bringing about of any human admixed embryo … using the gametes for purposes that may not be authorised by a HFEA licence … supplying gametes to a licence holder for a purpose for which they hold a licence”.
The original regulations, published on 3 June, did not include,
“the bringing about of any human embryo”,
“the bringing about of any human admixed embryo”.
This would have meant that the gametes could have been stored without a licence, for the purpose of making cloned human embryos and human admixed embryos, with the exception of full hybrids, if the purpose was research on gametes, teaching requiring the use of gametes, or developing or testing pharmaceutical or contraceptive products.
Fortunately, the Merits Committee was instrumental in bringing this to the attention of the Department of Health, and the statutory instrument was therefore redrafted to include what is now Regulation 3, paragraph 3(b) and (c). The Merits Committee is to be commended for its swift action to close up this loophole. I note that in the 21st report of 2009, the Merits Committee comments that the original wording,
“would not have met the policy intention of requiring the licensing of any process that creates embryos”.
There should perhaps be some fine-tuning on that point, in that it is the unlicensed storage of gametes for the purposes of creating cloned human embryos and human admixed embryos that could have taken place under the original Regulations. Nevertheless, it was a serious drafting error, and we should be grateful to the Merits Committee for noticing it and arranging for the redrafting.
I also note, as acknowledged at the head of this draft statutory instrument, that it has already had to be reprinted twice,
“in consequence of defects in two previous draft regulations”.
Apparently, there was another drafting error that also had to be corrected. In view of three draft sets of regulations having been produced in June, and possibly a fourth draft set being required if there is indeed a problem relating to Regulation 2 on offences, I therefore concur with the Merits Committee’s report that it would have been better to have put these regulations out for public consultation first, to provide the opportunity for defects to have been noticed at an earlier stage. It is true that members of the public may contact the Merits Committee within a week of a statutory instrument being laid before Parliament. However, this is not the same as a public consultation process; the week might have already passed before members of the public even became aware of the regulations. There is also the issue of complexity: there needs to be time thoroughly to analyse and think through the implications. Drafts of these regulations have been raining down like confetti, with no less than three different versions having been put into the Printed Paper Office.
Legislating on the hoof is demonstrably a foolish approach, a lesson painfully learnt in the notorious Dangerous Dogs Act. Government departments in general should not assume that expertise outside the department will be an obstacle rather than a help. In this case, the interventions of Dr Elizabeth Allan to the Merits Committee pointed out the flaws in the regulations, some of which remain as I have identified. Will the Minister confirm that all future draft regulations relating to the Human Fertilisation and Embryology Act will be put out for public consultation before being laid before Parliament?
The Merits Committee has done the House a great service by arranging for the draft regulations to be amended to ensure that the unlicensed storage of gametes to make cloned human embryos and human admixed embryos under Regulation 3 will not be possible. The committee pointed out in its 21st report, that “the definition is complex”, and recommended that the regulations were kept under review to ensure that the policy intention was retained in the light of technological developments. Many of your Lordships will remember the frequently changing definitions during the passage of the Human Fertilisation and Embryology Bill, and the long debates in this House and in the House of Commons Science and Technology Committee and the Joint Committee on the draft Bill, examining definitions of hybrids and chimeras. Since both aspects of the special exemption regulations—investigating offences and storage of gametes for certain purposes—already seem to be casualties of the complexity of definitions, with potentially serious consequences, I concur with the Merits Committee that they should be kept under review. That seems all the more necessary in view of the fact that the Secretary of State has the power to alter definitions of human gametes and human admixed embryos. Will the Minister confirm whether the Government will keep these regulations under review to ensure that the policy intention is retained in the light of technological developments and, if so, what the mechanism of review will be?
When the Minister responds, I hope he will take account of the two concerns that I have expressed: loopholes and procedures. In my years in both Houses in this place, I cannot recall a stronger indictment than that expressed by the Merits Committee in the report to which I referred. Its remarks warrant serious reflection. If the Government are ever to win the public's confidence in the field of embryology, they must do far better than this in future.
My Lords, I, too, welcome these regulations. Many of the questions that I might have asked have already been raised by other Members of your Lordships’ House. I have a query on the question of storage of embryos. Bearing in mind the recent, highly publicised incident in which the wrong embryo was implanted into a woman, leading to a pregnancy that had to be aborted, the regulations relating to storage and labelling seem sufficiently tightly drawn to avoid that issue arising in future. However, can the Minister confirm that the issue is one to be met under these regulations and that that is not an incident that is likely ever to recur?
Secondly, I do not share the concerns expressed by the noble Lord, Lord Alton, about the regulations. All the important issues relating to the exceptions allowed under the regulations are handled very clearly and precisely in the Explanatory Note. The first exception to the points relating to storage of gametes and embryos deals with the,
“examination of embryos, or the storing of gametes, in connection with the investigation of, or proceedings for, an offence under the Human Fertilisation and Embryology Act 1990”.
The second exception, in Regulation 3,
“applies to the storing of gametes for the purpose of research”,
and other things so clearly set out in the regulation. I understand entirely the concern expressed by the noble Lord, Lord Alton, about human admixed embryos, but it was in the Act itself that the decision to allow these admixed embryos to be created for research purposes under licence was agreed. For that reason, the issues that he has now raised should not give us any serious concern.
I would add only one other point. I know that the noble Lord and the noble Baroness will remember when I raised in some detail during our debates on the Act concern about research leading to the technique of pronuclear transfer for the prevention of mitochondrial diseases. Such diseases are very serious and could be avoided if that particular technique—now proven under licence to be feasible—were allowed and an embryo created by pronuclear transfer could be inserted into a woman. I tabled an amendment saying that a licence shall provide for such a technique, which the Government refused. The Act now states that regulations shall provide for it. I hope that once these regulations have been accepted, in the fullness of time and not before too long, the Government may consider introducing regulations to deal with that issue relating to the prevention of mitochondrial disease using that specific technique. It shows enormous promise in the prevention of those devastating diseases.
My Lords, I raise the issue of fatherhood in the context of the regulations. In doing so, I am conscious of the great scientific expertise which has been drawn to these important regulations and the knowledge which is there. It is a great strength of this House to have that level of scientific understanding. I cannot pretend for one moment to come anywhere near to understanding that, but there are two components to any decision. One is whether you could and the other is whether you should. Whether you should implies an instinct of moral judgment about which some Members of this House are qualified to speak. Although I am probably not qualified, I would like to raise those issues as we consider them this evening.
For that reason, one of the things that I have been persuaded on by listening to the debate is the comments of the noble Lord, Lord Alton, who went through the problems that were found by the Merits Committee when looking at these regulations and its concerns about their drafting. It is a cause for concern because we are not talking about the Dangerous Dogs Act or food labelling. We are talking about the very essence of life. Therefore, to see errors occurring in these sorts of regulations raises serious concerns, which I am sure the Minister will have taken careful note of.
I am of course aware that our response to the question of whether it is proper for the state to facilitate the deliberate creation of children with the intention that they be denied the chance of ever having a father for the duration of their childhood has already been determined. However, it is important for us to note that regulations giving effect to that controversial aspect of the Act are before your Lordships' House today, and I ask the Minister for certain reassurances about their implementation.
In order to understand the need for ministerial reassurances, it is important to briefly rehearse some of the arguments and reasons for public concern. First, the point was made that since the rationale for the new Act was to have regard for key research development since 1990, one of the important points that we have to take into consideration is the explosion of research underlining the importance of fathers—demonstrating how they bring something distinctive to the parenting process. This, it was argued, should result in the Act having more and not less consideration for the role played by fathers.
Secondly, the point was made that there is all the difference in the world between the state making provision for a child in care to be adopted by a lesbian couple—a child who could otherwise be institutionalised—and its deliberately facilitating the creation of children with the intention that they should never have a father for the duration of their childhood. Thirdly, deep concern was expressed in the debate that the Government’s all-important consideration seemed to be the rights of would-be parents to access IVF rather than the rights of the child created as a result of that IVF . The legislation appeared more concerned with championing the rights of the stronger party—that is, the parents—than those of the weaker party; namely, the child.
Given these concerns, particularly the fact that the research demonstrates that fathers bring something distinctive to the parenting process—which means that we have to assume that this would be missing if the father is absent—we should embark very cautiously indeed on a pathway of facilitating the deliberate creation of children with the intention that they be denied a father. Of course, I am aware that some research suggests that the children of same-sex parents may not be disadvantaged compared to those who have a father and a mother. I do not wish to suggest that this is not the case. My point is simply that the research is in its early stages and only pertains to relatively small sample sizes. If we are to overrule the implications of the far better-sustained findings which demonstrate that fathers bring something distinctive to parenting, we owe it to the children to tread very carefully indeed.
In light of these concerns, what new provisions is the Minister putting in place to assess child well-being in the context of the state now deliberately facilitating the creation of children with the intention that they be denied a father for the duration of their childhood? Moreover, will he give an undertaking that, if evidence comes back which suggests that child well-being is being compromised by Sections 42 and 43 and these regulations, he will act speedily to introduce appropriate changes?
My Lords, when the noble Lord referred throughout his speech to evidence relating to the importance of fathers, what evidence exactly was he citing? Was he, for example, citing the document produced by Christian Action, Research and Education, which was referred to throughout the passage of the Act?
My Lords, I am grateful to the noble Baroness for her question. Of course, that was the information that I directly referred to. There is also some excellent work that has been done by the Centre for Social Justice. Most fundamentally, I was drawing on my own personal experience of having been blessed by having a father, and of being a father to two children.
My Lords, yet again I am grateful for a very constructive debate on these regulations. I will attempt to address the large number of questions. If I do not complete in time, I will be more than happy to write to noble Lords with more detailed answers.
I start with the exemption powers, which the noble Earl, Lord Howe, raised in relation to Regulation 2. The power under which these regulations are made is set out in Section 43 of the 1990 Act. This limits the scope of the regulation to make provision in relation to the keeping and examination of gametes and embryos, and not human admixed embryos. It is a criminal offence to keep human admixed embryos without a licence. If it was necessary for the Human Fertilisation and Embryology Authority to keep a human admixed embryo in connection with a crime, it would need to be stored in licensed premises. I hope that also addresses the question of the noble Lord, Lord Alton.
Turning to the question about the review of the special exemption regulations, which was raised by the noble Earl, Lord Howe, the answer is yes: I have no doubt that we need to keep up with scientific advances in relation to the exemption regulations and the demand for different purposes, other than the creation of embryos. The noble Baroness, Lady Barker, raised the issue of who will be responsible for the ongoing storage. The regulation provides for the HFEA to store embryos without a licence in connection with the exemptions listed. The HFEA would arrange for another clinic with appropriate storage facilities to have the embryos for as long as necessary. The noble Baroness also asked about the time limit for unlicensed storage. No time limit is set out in the legislation. Embryos are kept only in very specific circumstances but there is no time limit relating to that.
The noble Lord, Lord Alton, referred to the consultation process and made a very strong point in relation to that. I reassure the House that the Department of Health consulted for 12 weeks on the other aspects of the regulations in front of us. I recognise the value of consultation and will consider very carefully on each occasion whether a consultation on all future regulations should take place.
As regards the appeals regulations, I am grateful for the noble Earl’s acknowledgement that a legal chair would be appropriate. The Health and Social Care Bill passed through the House a long time ago but I am more than happy to go back to it to look at the reasons why a legal chair was not considered appropriate. However, in relation to these regulations it is considered appropriate in the case of the HFEA appeals committee to have a legally qualified chair. These cases will nearly always be legally complex and the HFEA supported this provision. The noble Earl asked whether a member of the committee could vote. It is important—we recognise this and it was supported during the consultation—that the appeals committee reaches a decision and does not have a tied result. For that reason the regulations provide that the membership must be an odd number. Preventing a member abstaining maintains that position.
The noble Baroness, Lady Barker, asked what we meant by “day”. We mean a calendar day. The noble Lord, Lord Alton, said that the appeals committee should not be advised by a member or former member of the HFEA. I have no doubt there are two views on this. It is important that the correct expertise is available. The relevant people will need to declare any conflicts. We believe that we have the correct balance of expertise and independence. I further reassure the noble Lord that the chair of the appeals committee has the right to choose his or her advisers. If the legally qualified chair of that committee feels there is a conflict, that issue could be dealt with there and then.
The noble Lord, Lord Walton, referred to the issue of the wrong embryo being put in a woman and asked whether that was addressed by these regulations. The answer is no. However, the HFEA has processes in place to address the very unfortunate situation that arose in Wales. I would be more than happy to send more details in relation to the current investigations which have been carried out.
I wish to deal with two other points raised by the noble Baroness, Lady Barker. I confirm that nothing which is prohibited under current law is allowed under the transitional provisions. She asked whether private clinics must provide fertility services to same-sex couples under the private and voluntary care regulations. The answer is no but they can do so. We are not putting that in regulations.
The noble Lord, Lord Walton, raised a very important issue and asked whether the Government would bring forward regulations to address mitochondrial disease. We shall certainly monitor that. Given his very persuasive arguments and support for that, we will look into it. The noble Lord, Lord Bates, asked whether the Government have denied fathers. We debated this in great depth through the passage of the Bill. I remember many of the interesting debates that we had. I refer the noble Lord to Hansard. Research by academics indicates that it is the quality of parenting, certainly not the sex of the parents per se, that is important. The Government have considered a child’s need for supportive parenting. As I have said, this was comprehensively debated during the passage of the Bill. I hope that I have covered most of the questions. I am very grateful for the very constructive feedback.
Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order 2009
Motion to Approve
Moved By Lord Darzi of Denham
That the draft Order laid before the House on 3 June be approved. 16th Report from the Joint Committee on Statutory Instruments
Human Fertilisation and Embryology (Appeals) Regulations 2009
Motion to Approve
Moved By Lord Darzi of Denham
That the draft Regulations laid before the House on 3 June be approved. 16th Report from the Joint Committee on Statutory Instruments
Coroners and Justice Bill
Committee (5th Day) (Continued)
175: After Clause 51, insert the following new Clause—
In Part 5 of the International Criminal Court Act 2001 (c. 17) (offences under domestic law), after section 69 insert—
“69A Retrospective operation of this Part (1) The provisons of this Part shall be treated as having had effect—
(a) in respect of genocide, since 9 December 1948 (being the date when the Genocide Convention was approved by the General Assembly of the United Nations), (b) in respect of crimes against humanity, since 1 January 1991 (being the date from which the United Nations, through the adoption of the Statute, recognised crimes against humanity as being part of customary international law),(c) in respect of war crimes—(i) which fall within article 8.2(a), since 12 August 1949 (being the date the Geneva Conventions were done),(ii) other than those referred to in sub-paragraph (i), since the date when they were criminal according to the general principles of law recognised by civilised nations.(2) If the date referred to in subsection (1)(c)(ii) is earlier than 6 June 1945, that date shall be treated as 6 June 1945 (being the date in respect of which jurisdiction under the War Crimes Act 1991 ended).
(3) War crimes referred to in subsection (1)(c)(ii) are deemed criminal according to the general principles of law recognised by civilised nations from 17 July 1998 (being the date the ICC Statute was done) and may be so before that date.
(4) In this section—
“the Geneva Conventions” means the international conventions done at Geneva on 12 August 1949,“the Genocide Convention” means the Convention on the Prevention and Punishment of the Crime of Genocide approved by the General Assembly of the United Nations on 9 December 1948,“the Statute” means the Statute of International Tribunal adopted by the Security Council of the United Nations, and“the International Tribunal” means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 established by Resolution 827(1993) of the Security Council of the United Nations.””
As I have spelt our previously in this House, the amendment seeks to adjust a procedural aspect of current legislation—namely, to extend the retrospective and extraterritorial application of the International Criminal Court Act. In brief, the International Criminal Court Act 2001 enables there to be prosecution in the UK courts of those suspected of perpetrating crimes against humanity, war crimes and genocide, irrespective of where those crimes were committed. However, the criteria insist that the suspect be a UK national or resident in the UK and that the crime was committed after 2001 when the ICC came into force in the UK. The result of this anomaly is that there are at present perhaps up to a 100 people suspected of such serious crimes currently in the UK. Recently four Rwandan suspects deemed to have committed crimes prior to 2001 were released.
It cannot be good practice that justice is neither done nor seen to be done, or that the UK might possibly be regarded as a safe haven for perpetrators of war crimes and genocide. Ultimately these suspects must be forced to account for their crimes if the universal will to eradicate crimes against humanity is to be achieved.
The amendments address the timing, presence, immigration, extradition and internal conflict aspects of the ICC, among others, thereby enabling the UK courts to have jurisdiction with respect to crimes committed after 2001. To avoid the retrospective application of the law, the courts could only have this jurisdiction if the crimes were committed at a date at which these crimes infringed UK law. This has already been demonstrated in citing existing legislation dealing with war crimes, crimes against humanity and genocide by virtue of the Geneva Conventions Act 1957, the Genocide Act 1969 and the statute of the International Criminal Tribunal for the former Yugoslavia, which pronounced crimes against humanity as criminal under customary international law.
It has been argued that the UK law should be brought into line with other common law countries, including Australia, New Zealand, Canada, South Africa and, very recently, the USA. We are, therefore, extremely grateful to the Government for their successful efforts to do just this. We learnt today that the Government have accepted that crimes in the categories of genocide, war crimes and crimes against humanity committed since 1991 will henceforth come within the jurisdiction of the UK courts, based on the precedence established by the International Criminal Tribunal for the former Yugoslavia. Furthermore, the Government are exploring the possibility of providing more certainty as to who may be considered to be a UK resident. However, this continues to trouble those of us who have signed up to these amendments, and those research organisations which have provided the background. It is surely not right that suspects of such serious crimes can avoid charges and possible prosecution by virtue of a refusal to take up any form of residence. As things stand, that can and does happen. A casual visitor to the UK, whether for holiday or perhaps medical treatment, must come within the arm of the law if they are a suspected genocidaire or perpetrator of other serious crimes. We therefore press the Government to come up with a more inclusive definition of residence to address that remaining anomaly, so that we can consider the matter on Report.
Once again, I express my thanks to the Government for having come so far in meeting our concerns. I beg to move.
I shall speak briefly in support of the amendment. I agree with every word said by the noble Baroness. I add what a pleasure it is to be on the same side as the noble and learned Lord, Lord Falconer of Thoroton, immediately after the last debate; it shows what a civilised place we are.
I too had the opportunity to read the Written Ministerial Statement issued this afternoon by the Lord Chancellor and Secretary of State for Justice. I want to say how grateful I and all of us involved in the campaign have been for the assistance that we have had from Ministers and the conversations that have taken place. I appreciate the way in which the Government have listened and moved on the subject. I too applaud the decision that the categories of crime of genocide, war crimes and crimes against humanity should be included as from 1 January 1991.
My only reservation, like the noble Baroness, is the Government’s apparent remaining indecision about the difference between presence and residence. I understand completely that the Government are still considering the matter, so I do not propose even to imply that they are resisting some significant change in the definition of persons who can fall within the expanded jurisdiction. I respectfully remind the Minister that a presence test exists in Canada, New Zealand, South Africa, France, Germany, Spain, Belgium and the United States for genocide. Indeed, if Senator Durbin’s Bill in the United States Congress is passed, as seems likely, there will be a presence test for crimes against humanity. Canada has a presence test across the board, and it has not caused particular difficulties there.
My concern is that people who commit the most horrendous crimes against humanity, and have in some cases been guilty of the murder of hundreds of thousands of people, should have absolutely no hiding place. We would not be closing the loophole effectively if they were allowed to go shopping in Knightsbridge for a couple of days but were not liable to be arrested and tried here. It would continue the poor reputation that the United Kingdom has had as a safe haven were there to be loopholes of that kind.
Therefore, I simply urge the Minister in a spirit of co-operation that, when the matter comes back, a test should be found which perhaps excludes those whose plane perforce, by act of God or some other temporary reason, puts down at Heathrow Airport to be refuelled or repaired, but includes those who have chosen to remain here for a period of time.
I join the noble Baroness, Lady D’Souza, and the noble Lord, Lord Carlile, in very much welcoming the approach of the Government in relation to this matter. I particularly welcome the backdating to 1991 in respect of all three categories of crime. I read the letter that I have received from Claire Ward, the Justice Minister, as indicating that there will also be a shift in relation to the current residence test. I am not sure precisely as to what the shift is going to be. It would be the greatest disappointment—and I do not expect to be disappointed—if the shift that occurred on the three crimes, by backdating them to 1991, was not also reflected in a shift in relation to what the test is. Indeed, it should move as close to presence as possible, while accepting that the true transitory person may not be liable to be caught. I should be very interested to hear what the Minister has to say in relation to this issue, and I very much hope that he will be able to give us more encouragement than we have already had.
As the fourth signatory to this amendment, I join the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Carlile, in supporting my noble friend Lady D’Souza, who tabled the amendment and who spoke on the subject very eloquently at Second Reading.
At Second Reading, I described what I had seen when I visited Murambi in Rwanda, where 56,000 people had been killed during the genocide there. I described to the House how some people who were alleged to have been responsible for those crimes were still living in this country, and how we were unable to extradite them to Rwanda because we had no certainty that they would receive a fair trial there, but, on the other hand, we had no way of bringing them to justice here.
The noble Lord, Lord Bach, the Minister, listened very carefully during that Second Reading debate, and I was very struck by the reply that he then gave us. I felt then that the Government were taking the issue seriously and would do something about it. I was delighted at the meeting that he organised with the Secretary of State for Justice and Lord Chancellor—the right honourable Jack Straw—to hear the commitment that Mr Straw also gave to seeing that a change was made in the law. This is a very good example of where the Government have listened carefully to representations made, not just within your Lordships’ House but to groups such as the Aegis Trust.
I am delighted that this amendment is before us tonight and to have seen the Statement that has been issued. In view of the lateness of the hour and all the arguments that have been advanced, all that needs to be said is that we should wish the amendment well, hope that it will reach the statute book soon, and that we will see brought to justice some of those who have been responsible for crimes in all three categories. There was some speculation that they may be reduced merely to cover genocide—I know that Sir Ken Macdonald, the former Director of Public Prosecutions, raised that concern. Again, I am delighted that, whether it is crimes against humanity, genocide or war crimes, all three categories will be caught by this amendment.
I rise briefly in support of the amendment of my noble friend and other noble Lords. I declare an interest as the chair of the United Nations Association, on whose behalf I made representations to the Secretary of State for Justice and Lord Chancellor, asking that this loophole be filled. I have just three short points to make.
The first is the general point that since 1991 this country has been committed to trying to remove the culture of impunity for these appalling crimes world wide. We have willed the end but, alas, as we discovered in the High Court a couple of months ago, we failed to will the means in an effective way, because we have left a loophole. I am sure that we did so totally inadvertently, but through that loophole have gone a number of people.
My second point is that it is well known and well advertised that that loophole exists. If it is not closed absolutely firmly and fully, we will have more and more of this. It will be known that, whereas in some countries people like this will be proceeded against in the courts immediately, under certain circumstances in this country they will not. The arguments for closing the loophole are not just moral or legal, but are practical arguments about this country not becoming a haven for these people.
I should also add as my third point the arguments that others have advanced for moving to a presence criterion in this matter. If there have to be some exceptions from the presence criterion, so be it—I am sure that if they are tightly drawn and carefully drafted, that would be fine. I have real doubts about whether continuing on the basis of residence will be a happy way forward. My greatest fear is that an enlarged residence criterion, however carefully it is drafted, would still leave loopholes that might result in further High Court cases, and therefore we would end up in the same situation that we are in now. That would be lamentable.
I thank the Government warmly for the shift in their position that was made clear today, and for the way in which the Minister, his colleague in the other place and others who have been involved have listened to the representations that have been made. I hope that, in their further considerations before Report, they will be able to draft something that is really watertight and based on presence.
I, too, warmly welcome the amendment and congratulate the Government on graciously accepting it. Let me say, on a personal note, that I was a Minister at the Home Office in February 1969 and had the privilege of taking the Genocide Bill through the House of Commons. I am not entirely sure whether the fault began with that measure or whether it lies more with those who were legislating in 1991—or whether it is shared. I plead guilty to whatever faults there were in 1969, but in mitigation I will say that the Bill began in this House and came to the House of Commons without any particular comment on the aspect that we are dealing with now. I well remember powerful speeches made on that occasion by the noble Lord, Lord Waddington, and the noble and learned Lord, Lord Archer. I will also say that the test should be deliberate presence in the United Kingdom. If the presence is accidental, it may well be that an exemption could be made. I am sure that “residence” would allow many guilty people to escape.
I, too, thank and congratulate the Government for the statement made this afternoon, and the signatories of the amendment for provoking it. The date of 1 January 1991 is eminently sensible and defensible, for all the reasons that the noble Lord, Lord Hannay, gave to your Lordships.
I suspect that, when the Minister sits down, the outstanding issue will be the grey area between “residence” and “presence”. That is, indeed, the one part of the amendment that needs enriching. The Opposition have not yet concluded where our position will lie in the spectrum between presence and residence. We would be extremely grateful tonight, as other noble Lords have said, for any help that the Minister can give us. It may be that the Government’s thinking has not yet crystallised—but to the extent that it has, it would help us when we come to later stages of the Bill.
The amendments before us seek to address a very real problem. We have constantly said, and remain of the view, that serious international crimes of this nature are best dealt with in the country where the crimes took place. That is where the witnesses and the evidence are more easily accessible and where the victims and survivors of the crimes can see justice done and reparation made. Failing that, they should be dealt with by international courts or tribunals, where they exist. That is why we have given financial and practical support to the International Criminal Court and to the various international tribunals such as those for the former Yugoslavia and for Rwanda. However, we know that it is not always possible for crimes to be dealt with in that way.
My right honourable friend the Justice Secretary said on 5 May that he had met representatives from the Genocide Prevention All-Party Parliamentary Group and that they had made a strong case for extending the jurisdiction for the offence of genocide within our law. He undertook then to consider how best to proceed. Since then, we have of course had Second Reading of this Bill, when a number of noble Lords, who have spoken again this evening, spoke eloquently and persuasively about this issue. We have given the matter more consideration and I am delighted to say—I thank all noble Lords for what they have said—that my right honourable friend the Justice Secretary announced this morning that we have concluded that our domestic law in this area should indeed be strengthened.
That is good news, but this is a complex area of the criminal law. Let me deal first with the question of retrospection. The offences of genocide, war crimes and crimes against humanity are contained in the International Criminal Court Act 2001. From that year, we have had jurisdiction to try those crimes in the UK wherever they took place. Parliament took the view in 2001 that the extraterritorial effect of the offences should not be retrospective for a number of reasons. It wanted the UK law to be complementary to the jurisdiction of the International Criminal Court, which is not itself retrospective. It is not normally legally permissible to make criminal law retrospective. However, it is possible to make criminal in domestic law behaviour that at the time was recognised under international law as criminal. The Committee will not need to be reminded that that is set out in Article 7 of the ECHR. However, there are difficult issues over what date each of these areas of offending, or their constituent elements, was recognised by the international community. This is particularly difficult for war crimes and crimes against humanity.
Having considered the matter with some care, we decided that, as far as is permissible under the legal principles applicable to retrospection, we should seek to cover the crimes of genocide, war crimes and crimes against humanity from 1 January 1991. This is a significant and symbolic date in terms of criminal prosecution for offences of this kind as it is the date from which the International Criminal Tribunal for the former Yugoslavia, whose statute specifically covered these three types of crime, had jurisdiction to try offenders under the tribunal’s statute as adopted by the United Nations Security Council. The date 1991 will also allow us to adopt a single common date for all three areas, inasmuch as we can cover them and thus provide for clarity in the law.
The other issue that these amendments address is who should be covered by the offences. The law at present covers offences committed by UK nationals, UK residents and crucially those who subsequently become resident, as well as those subject to UK service jurisdiction. During the passage of the International Criminal Court Bill, we listened to concerns about jurisdiction and agreed that, unusually and because of the grave nature of these crimes, jurisdiction for these crimes should extend to UK residents as well as nationals. The 2001 Act, as I have mentioned, also allows prosecution of those who commit crimes and subsequently become resident.
We are not persuaded that extending the law to those simply “present” here would be right. Short-term visitors here are not seeking a safe haven in the UK and they should ideally be prosecuted in the country where they are resident. To cover them would be a significant increase in our jurisdiction over people with no connection to the UK, except for temporary presence. The reason for taking the exceptional step of strengthening our law to deal with actions in the past is that we want to prevent the people for whom we are responsible, whether through nationality or because they live here, from escaping justice. Our aim is not to become a policeman for the world. As a general rule, if such individuals arrive here and are known to be suspected of an offence of such a serious nature, they may well be turned back at the port of entry.
The current law covers those who are resident in the UK. This is a matter of fact for the courts to determine on the facts of individual cases but we are conscious of concerns that the residence requirement may lack clarity. Of course, what has been said by all the speakers in this short debate has centred—if I may put it this way—on the lack of clarity as to what the expression “residence” might mean in this particular case. Therefore, we will explore the possibility of providing more certainty as to who may or may not be considered to be a UK resident for these purposes.
We accept that the status quo is not a viable option. Our proposals to make it possible to prosecute in this country persons resident here for offences committed since 1 January 1991, so far as is permissible under the legal principles applicable to retrospection, will send a clear signal that this country must not become a safe haven for those suspected of committing these awful crimes.
I invite the noble Baroness, Lady D’Souza, to agree to withdraw her amendment for the time being. I assure her that we will bring forward on Report, which will now be after the Recess, appropriate government amendments along the lines I have described. All noble Lords have been extremely gracious in the compliments they paid to the Government this evening. In turn, perhaps I may say how helpful all those who have met us and argued for this have been towards persuading us that it was necessary for the Government to take the line that they have. I hope that the noble Baroness, having agreed that the proposals will go a significant way towards meeting the objectives set out in her amendments, will keep talking to us during the course of the next few weeks and months. If the noble Baroness and the other sponsors of her amendments would find it helpful to discuss the detail of our proposed amendments, we of course would be more than happy to meet her and the others in advance of our amendments being tabled and to share the amendments with them before they are laid before the House.
My thanks go to all noble Lords who have spoken in support of the amendments, but particularly to the noble Lord, Lord Carlile, because he is the original author of the amendments. I also repeat my thanks again to the Government but should like to emphasise the concerns that we all still have. We would very much like to take up the Minister’s offer of discussing this at length. It would be nice if, during the Summer Recess, he and his officials could come up with an extremely skilful legal definition of those who are subject to the law—even those who are short-stayers, but necessarily deliberate short-stayers. It would be rather unfortunate if there were a definition which was still sufficiently loose for there to be yet more loopholes, however small they might be, as has been said by my noble friend Lord Hannay. It would be very nice if those loopholes could be closed once and for all. I thank the Minister and beg leave to withdraw the amendment.
Amendment 175 withdrawn.
Amendment 176 not moved.
Amendment 177 had been withdrawn from the Marshalled List.
Schedule 10 : Encouraging or assisting suicide: providers of information society services
Amendments 177A to 177D not moved.
Schedule 10 agreed.
Clauses 52 to 58 agreed.
Schedule 11 agreed.
Clause 59 agreed.
Amendment 177DA not moved.
Clause 60 : Conspiracy
177E: Clause 60, page 36, leave out lines 34 and 35
I speak also to Amendment 177F. I was intrigued to see a single clause dealing with conspiracy inserted into this extremely long Bill. I was also intrigued to see that it is an amendment to the Criminal Law Act 1977—conspiracy to commit offences outside the United Kingdom—and that it is proposed that nothing in the section as amended in both United Kingdom and Northern Ireland law should impose,
“liability on any person acting on behalf of, or holding office under, the Crown”.
Acting on behalf of the Crown could cover an enormous range of people, possibly millions. I wonder why that has been inserted. I was informed that the clause has something to do with the security services, and that it is simply to allow 007 to do his business, but perhaps there is some other reason. I look forward to hearing an explanation from the Minister. I beg to move.