Report (2nd Day) (Continued)
Clause 49 : Meaning of "qualifying trigger"
Amendments 61A to 61C not moved.
62: Clause 49, page 29, line 32, leave out paragraph (c)
Before the break, I expressed my views on the current law on provocation and the Government’s proposals to amend it. However, one thing is glaringly inconsistent in the way in which the Government are moving—Clause 49(6)(c). It appears that every human emotion can be invoked as a qualifying trigger for the loss of self-control, except something that has been done or said which “constituted sexual infidelity”.
For some reason, which I really do not understand, the Government seek to remove from provocation the issue of sexual infidelity. That can apply to a male or a female defendant. I have been thinking about my own experience, and in all probability I have come across sexual infidelity as a trigger for a female rather more than for a male. In other words, a philandering husband is the person who causes the loss of self-control by the wife, rather than the other way round.
I spoke in Committee about the betrayal of trust involved in sexual infidelity. Sometimes arrangements are arrived at between husband and wife that you would not expect to lead to a loss of self-control—almost an agreement. But there are cases in which there has been a deep bond of trust between the partners, or at least one of the partners has thought there was, and they have been betrayed. That betrayal gives rise to the deepest of emotions, which can lead to anger, jealousy, and indeed to picking up a carving knife. I remember in one case a lady picked up a bread knife and put it down and picked up the meat knife to murder her husband, which rather suggests that she had an intention to kill or to cause some really serious harm.
This removal of sexual infidelity as a cause of loss of self-control is just illogical and not desirable. I do not wish to repeat what I said in Committee, since this is Report, but the whole of the amendments that the Government have made are in my view obnoxious, and this is outstandingly obnoxious. What it really reflects is something that has run through the 12 years of this Government—a refusal to trust the good common sense of a British jury. They are the people who decide what the standards are, how deep the hurt is, and what justification there can be for the action of a particular defendant. I would rather leave these issues to the jury, if provocation has to stay, and not confine their consideration of the marital or other relationships between a man and a woman or a man and a man or a woman and a woman. I should rather leave it to their good common sense to determine whether murder, which is proved, should be reduced to manslaughter by reason of the partial defence of provocation. I beg to move.
My Lords, my noble friend Lord Hunt and I seem to be splitting the murder issues between us. My noble friend confessed that he last saw much crime when he was doing his law exams in the late 1960s. My knowledge is marginally more modern, in that I did my Bar exams in the late 1970s. However, I shall do the best I can. I hope that I can say that I know even less about sexual infidelity—but that is entirely a matter for me. After all, this is after dinner.
The noble Lord has laid out a compelling case for why this is, at best, a peculiar exception to be included in the Bill. It should go without saying that we do not suggest sexual infidelity to be an excuse or justification for murder, but that is quite a different thing from saying—as the Government hope to do—that the impact of another’s sexual infidelity on a person’s thoughts, actions and emotions should be disregarded entirely. As the noble Lord pointed out, there are different levels of infidelity. What this really involves is not the sexual relations of the defendant but a breach of trust.
We agree that a defendant who relied on sexual infidelity alone as a defence for murder without anything deeper or broader would be highly unlikely to succeed, and rightly so. But to select one aspect of human behaviour and totally exclude it as a consideration is denying the court the opportunity to weigh up the circumstances of the case in their entirety. We on these Benches sincerely doubt that a jury, in this day and age, would be convinced that a husband or wife should be exonerated from murder because the spouse had strayed outside the marital vow of fidelity. The Government are refusing to treat juries as panels of grown-ups, which is what they are, if they think that they should not be allowed to consider breach of trust in its correct place as part of the circumstances of the case.
We also question the Government's choice of wording. How does something that is said constitute sexual infidelity? A confession of past wrongs is just that—a confession. It does not constitute anything more. The presence of paragraph (c) is more to do with gesture politics than serious reform of the defence of provocation. Therefore, I ask the Minister to help us in our debate by explaining exactly the problems of this paragraph and why the Government included it in Clause 49. Is it a Law Commission recommendation or the invention of someone in the Government? The provision inhibits due consideration of all the events surrounding murder and denies proper deliberation of the factors that may raise a partial defence to that murder. The law would be better served with its removal, and we on these Benches will support the noble Lord, Lord Thomas, should he wish to press this amendment.
I, too, support the amendment. As the House knows, I agree with the noble Lord, Lord Thomas, that the whole of Clause 49 is objectionable, but this particular paragraph is truly objectionable. It is little short of astonishing that Parliament should be asked to tell the jury whether sexual infidelity is enough for a man or woman to lose their self-control. I thoroughly support the amendment.
My Lords, I, too, support the amendment. I apologise to the noble Lord, Lord Thomas, for not being here at the beginning of his speech, but I know very well his views on this topic. We would make ourselves look extraordinarily foolish if we say that a jury cannot take account of what most people recognise as being the most dominant cause of violence by one individual against another. Every opera you go to, every novel you read has sexual infidelity at some point or another. Otherwise, it is not worth reading or listening to. Forgive that aside, but it is the correct recognition of the literary position. It is mainly men killing women. I put that to a learned Member of your Lordships' House and was told that I had forgotten “Antigone”, a play by Euripides in which the woman ensures that her male should-have-been lover gets his comeuppance on the beach when the wheels of the chariot go wrong. However, on the whole, it is the men. It is an incredibly powerful voice. In every newspaper you read there is a case where somebody has killed or attempted to kill a spouse, lover, lost lover or whatever. To rule this out as not being an area of activity where human passions are deeply engaged, leading to violent action, is absurd.
My Lords, Amendment 62 would remove the subsection which provides that, when determining whether a loss of self-control had a qualifying trigger, the fact that a thing said or done constituted sexual infidelity is to be disregarded. In spite of what the noble Lord, Lord Neill, may think, we understand and accept that passions may run very high when a person feels a strong sense of having been wronged by another. We have taken pains to stress this whenever these provisions have been debated, both in the other place and here. A person may, of course, be very deeply wounded by the behaviour of another, particularly if the two are partners and one of them has been unfaithful to the other. However, what we cannot concede is the suggestion that, at the beginning of the 21st century, it is acceptable to deal with such situations by resorting to violence—and not just violence. We are talking here about the deliberate use of such force that death results.
It has often been thought, because of the history of the partial defence of provocation, that men who kill their unfaithful wives can make use of that defence to evade a murder conviction. To put it bluntly, we do not believe that it is right or fair, or that it should be a possibility. The development of case law and the outcomes of more recent cases may suggest that this problem has been to some extent addressed; I concede that. Indeed, pleas of provocation on the basis of sexual infidelity normally now fail. However, the current law still allows the defence to be raised and, obviously, where a defence can be raised it will succeed from time to time. Frankly, we want to draw a line under all this. Our provision spells out that it is unacceptable for a defendant who has killed an unfaithful partner to rely on that unfaithfulness to try to escape a murder conviction.
This debate is all about a partial defence to murder and, specifically, about when we should deem it appropriate to reduce liability for murder to that for the less serious offence of manslaughter. Our conviction is this: killing in response to sexual infidelity is, well into the 21st century, as I say, not a defensible basis for such a reduction to be made. Indeed, I challenge those who oppose this provision and have spoken against it to explain why they consider that, when one person kills another, the fact that the deceased had been unfaithful to their killer should ever be enough to reduce a murder conviction to manslaughter. The Government believe that what we propose here is appropriate and proper for the times that we live in, so I ask the noble Lord to withdraw his amendment. If he will not, I will advise the House to vote against it.
My Lords, the Minister seems to suggest that we are living in the past. That is not true. We say that the standard should be set by a jury, which must be under the age of 65; from our contemporary society; represents a cross-section of the community; understands the people in front of it; and can weigh these issues up in a way that we cannot in the House of Lords on 26 October. We cannot legislate in that way to cover all situations.
The noble Lord has confirmed—indeed, my noble friend Lord Carlile has confirmed—that you do not succeed in a simple case of infidelity with a plea of provocation. It requires much more than that today—more than it may have done if you went back to when this defence was first invented in 1707. That is how old provocation is as a defence to murder.
The standards of today are to be applied not by the Government in this House but by a jury, who will hear the whole case—all the facts, all the mitigation—and, by the standards that they believe are right for today’s society, will determine whether this should reduce murder to manslaughter. I am opposed to that concept anyway, as your Lordships know, but, if you have to have it, to exclude sexual infidelity from the consideration of the jury altogether by statute is entirely wrong in principle. It is not that we are for husbands who kill their wives or wives who kill their husbands, or anything like that. It is the way our system works that standards are to be applied by the people—not, as in this instance, by the legislators. It is for that reason that I seek to test the opinion of the House.
Amendment 63 not moved.
Clause 50 : Abolition of common law defence of provocation
Amendment 64 not moved.
65: After Clause 55, insert the following new Clause—
“Extension of extra-territorial application
(1) Part 5 of the International Criminal Court Act 2001 (c. 17) (offences under domestic law) is amended as follows.
(2) In sections 51(2)(b), 52(4)(b) and 54(4)(b) (application to acts committed outside the United Kingdom) for “or a person subject to UK service jurisdiction” in each place that it occurs substitute “, a person subject to UK service jurisdiction or any other person (whatever that person’s nationality) who is subsequently present in the United Kingdom”.
(3) In sections 58(2)(b), 59(4)(b) and 61(4)(b) (application to acts committed outside the United Kingdom) for “or a United Kingdom resident” in each place that it occurs substitute “, a United Kingdom resident or any other person (whatever that person’s nationality) who is subsequently present in the United Kingdom”.
(4) After section 68 insert—
“68A Proceedings against persons subsequently present within the jurisdiction
(1) This section applies in relation to a person who commits acts outside the United Kingdom at a time when that person is not a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction and who is subsequently present in the United Kingdom.
(2) Proceedings may be brought against such a person in England and Wales or Northern Ireland for a substantive offence under this Part if—
(a) that person is present in the United Kingdom at the time the proceedings are brought, and(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.(3) Proceedings may be brought against such a person in England and Wales or Northern Ireland for an offence ancillary to a substantive offence under this Part (or what would be such a substantive offence if committed in that part of the United Kingdom) if—
(a) that person is present in the United Kingdom at the time the proceedings are brought, and(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.(4) In this section a “substantive offence” means an offence other than an ancillary offence.
(5) Nothing in this section shall be read as restricting the operation of any other provision of this Part.””
My Lords, in moving Amendment 65, I draw your Lordships’ attention to its being grouped with government Amendments 66A and 135A. In the light of the previous debate, I should perhaps say that that is a result not of infidelity of any kind but of a meeting of minds on this subject. We are dealing now with the extraordinarily important and grave issues of war crimes, genocide and crimes against humanity. At the outset of what I hope will be a fairly brief speech, I wish to express my thanks to those other noble Lords whose names appear on the Marshalled List, the noble Lord, Lord Hannay, who has been an enormously wise adviser on this matter, and the Aegis Trust, which has done a tremendous amount of work in briefing Members of the House.
The headline of the attempt of those of us who wish to amend the law in this regard can be summarised in the three words “no safe haven”. Our view is that there should be no safe haven for war criminals, genocidaires and those who commit crimes against humanity in any of the jurisdictions of the United Kingdom. No one should be allowed to stand and flaunt their past activities while in the UK without at least running the risk of being prosecuted. We are determined that our competent prosecution authorities should be able to exercise their discretion in the normal way, as with every other criminal offence in relation to such persons who may have committed war crimes, genocide or crimes against humanity.
Our approach to this difficult issue fell into two headings. One heading was “presence”; we argued that mere presence in the United Kingdom should render people liable to prosecution, as happens in some other countries in the world. We have had enormous co-operation from the Minister, his colleague in the House of Commons and officials in a number of robust—perhaps I may put it that way—meetings, in which there has been a strong exchange of views. That has resulted in what I believe is a satisfactory solution. The Government, however, have approached this from the point of view that only “residence” will do. From those positions, we—those of us favouring presence as the standard—have looked at something that we have been calling “presence minus”, or presence qualified, while the Government have looked at something that we have characterised as “residence plus”, or residence qualified.
In approaching the discussions that have been taking place, we have looked at various possible scenarios involving the de facto presence in this country of people who were guilty, were likely to be guilty or might be guilty of the sort of offences that we have had in mind. I look forward to hearing the Minister explain to the House, in due course, how at least most of our concerns have been met by residence plus, as set out in government Amendment 66A, in particular in its second part, which appears on page 13 of the Marshalled List of amendments.
Those of us who share my view have recognised throughout the effect of the law of nations, while there will be some who do not agree that we should recognise that law. We recognise the reality of sovereign immunity. When we recognise Governments, we may like them not one bit. Nevertheless, even if we do not like them we recognise them as Governments. There are many examples of our Government and other Governments negotiating successfully and leading to change in countries whose Governments we dislike very much. That depends, in part at least, on the law of sovereign immunity and in allowing officials, if they come officially to this country, to negotiate—not to be arrested as a result of complaints to the police, thereby frustrating the negotiations.
I, at least, believe that the government amendments, especially paragraphs (g) and (h) of subsection (1) of the proposed new section on page 13 of the Marshalled List, will remove a possibility that we cannot accept should be right. We believe that the amendments will remove the realistic possibility of known war criminals, genocidaires and criminals against humanity remaining in the United Kingdom—and I use that neutral “remaining” purposefully—without running the risk of being tried here. Can the Minister confirm that we have understood correctly that it is the Government’s intention that people who remain in this country and whose presence is clearly undesirable—and whose presence the Government have made it clear is undesirable—will run that risk?
We recognise, of course, that there is an area of discretion to be exercised here, as there always is in relation to prosecutions. The discretion can be broadly summarised as the exercise of the public interest. In all international law, public and private, there are better and less good forums where trials can most meaningfully take place. I certainly accept that if somebody who should otherwise be tried for a war crime in this country can, realistically, be tried in their country of origin—where the evidence will be more accessible, probably stronger and more easily deployed—they can properly be the subject of an exercise of discretion that they should be tried in their own country. However, if that is not a realistic possibility, I hope that the Minister will confirm that people who fall into the much rehearsed scenarios that have been discussed at various times in relation to this part of the legislation will be capable of being tried here.
I say to the Minister that we have compromised, possibly more than we would have wished, and that we do not regard the idea of residence plus—residence with a number of factors defined as residence—as an entirely satisfactory solution. We certainly do not regard it as a perfect solution. However, we understand the legal and jurisdictional difficulties and are grateful for the distance that the Government have come from their original refusal to consider any variation on the word “residence” to the point that we have reached.
In summary, those of us who put our names to this amendment and who are now prepared to accept the Government’s amendments believe that we have achieved something important both through the formal debates that have taken place on the Floor of this House and elsewhere and in the discussions that have taken place in the useful way that I have described. My belief is that we can feel a sense of having made a real contribution to better global criminal jurisdiction. I beg to move.
My Lords, the background to this vital issue has been set out with great eloquence by the noble Lord, Lord Carlile. I should like to add that we are extremely grateful to the Government for having been so patient in listening to our concerns and, indeed, for having moved so far in meeting them. We are of course also indebted to the organisations that have provided consistent and expert advice: the Aegis Trust, Redress, JUSTICE and African Rights.
We stressed in our representations that we would wish to see the UK conform to several other countries that manifest a determination to ensure that genocide suspects are prosecuted and that the UK in no way acts as a safe haven for these people, of which there are still too many. We argued that a firm stance from the Government would act as a strong deterrent and, therefore, far from the courts being flooded with cases, there would in time be fewer, as no one would henceforth risk coming to the UK.
That said—and I recognise the broad inclusion of those considered to be residents—there are remaining opportunities for those suspects who arrive to receive medical treatment, to visit on business matters or even to visit their children at school in this country. Even these temporary visitors would, however, be liable for arrest, treated as residents and thus liable to prosecution if—I repeat, if—there were to be a dedicated and properly resourced unit within the Metropolitan Police whose task would be to investigate and follow up reports of suspected war and other heinous crimes. The mere existence of such a unit would act as a further deterrent to would-be visitors. Moreover, re-establishing such a unit—there was such a unit some time ago—would be in keeping with the Council of the European Union, which recommended that member states set up such units. Experience of other countries, particularly that of Sweden, shows these units to be highly successful in bringing about the prosecution of genocidaires and others suspected of serious crimes. That may be a hope too far, but its desirability at least should be on the record.
Once again, I thank the Government and, indeed, the Bill team and trust that they, too, will be satisfied to have been part of making a small but hugely important historical change.
My Lords, perhaps I may intervene at this stage. It suddenly occurred to me that we are at Report with a major government amendment that fills some five pages of the Marshalled List setting out the Government’s alternative version. Perhaps I may suggest that the Government intervene at this stage, as we could then have a proper debate. I think that it is open to the House to allow people to speak after the Government if the Government so wish it. I see nods from the appropriate quarters. If the Government set out their case and others respond afterwards, that might give us a better debate and speed up the proceedings of the House. I put that to the noble Lord. He can do what he wishes, but I think that he has received a nod to suggest that that would be appropriate procedure.
My Lords, I am sorry to disagree with the noble Lord, but I have a couple of questions that I want to put to the Government and it looks as though I would not be in a good position to do so if the Minister spoke now. I therefore hope that the House will allow me a couple of minutes to put the questions. I am sure that we will then have the debate that the noble Lord wants.
Speaking in support of the noble Lord, Lord Carlile, and my noble friend Lady D’Souza, we are grateful to the Government for their initial move in Committee to make these crimes retrospectively recognisable under British law. They are now recognised from 1991, which catches a considerable number of potential criminals in Serbia, the former Yugoslavia and Rwanda. We are also grateful for all the work that the Minister, his colleagues and officials undertook in trying to meet our points. However, I still believe that presence minus would have produced a cleaner, clearer outcome than residence plus. The effort that the Government have made in Amendment 65B is acceptable, but it is more complicated by going down the presence minus route. To some extent, it amounts to the approach of the Red Queen saying, “Residence is residence because I say it’s residence”.
Nevertheless, I shall not look that gift horse in the mouth and would like to ask three questions. First, much of the interest in this subject was triggered by the Rwandans who the Government tried to deport back to Rwanda, where they would have stood trial, and who the Court of Appeal, quite correctly in my view—it is not my job to say so, but nevertheless—decided would not get a fair trial in Rwanda. It then turned out that they could not get a trial anywhere and they got off. I would therefore like to know whether subsection (1)(g) in new Section 67A in his amendment would, if it had been in force at the time when that occurred, have caught that sort of person.
Secondly, subsection (1)(c) of the new section refers to,
“an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom”.
Can the Minister throw light on whether that covers those who come here for military training or courses? It sounds as though it does, because military training and courses are study, but I would like to hear that from the Minister. Of course, in certain countries, the military are only too likely to be those who are capable of committing, and in some cases have committed, such crimes.
Thirdly, can the Minister throw light on the impact of these fairly complex provisions on people who get long-term business visas, often for six months? Would they be caught if they fell within the scope of the categories that are applied?
I repeat that the Government have made a fair try at closing a loophole that should never have existed. We do not want in this House to go into how it came about in the first place, but I am sure that we do not want it to be there. Moving away from it is highly desirable. The more toughly and clearly we move away from it, the less these people will come to this country. Therefore, the problem that the Government see of an excessive demand on resources is self-solving: the tougher we are, the less they will come. The clearer we are that the culture of impunity will not be tolerated by this country, the more we will help the worldwide cause of preventing these appalling crimes.
I shall rise now. It was important that the three Members of the House—I know that there were others—who were most actively engaged in talking to the Government and moving us from our original position should speak first in this debate. Their amendment is first, and mine follows. I am delighted to respond to their amendment and to set out the reasoning behind ours and explain what they will do.
First, I warmly thank particularly the noble Lords, Lord Carlile and Lord Hannay, and the noble Baroness, Lady D’Souza, for the enormous amount of time that they have taken in trying to persuade us that our original position was wrong. I thank them equally for not holding out for so long that we could not find a solution to a problem that is crying out for one. I am most grateful to them, as I am to my officials, and I am grateful for the thanks that have been expressed to them. They have worked extraordinarily hard to get what I hope the House will agree is a satisfactory conclusion to this difficult issue.
I thank all those who originally pressed us to look at the possibility of taking the highly unusual step of making the offences of genocide, war crimes and crimes against humanity in the International Criminal Court Act 2001 retrospective, and we have subsequently engaged in discussing and developing our position. Obviously they include Members of this House and the other place, some non-governmental bodies and both the Joint Committee on Human Rights and the Justice Select Committee. We are now proposing a real step forward in dealing with those who commit terrible crimes.
Let me deal with retrospection first. It is the terrible nature of the crimes in question that justifies us taking the radical step that we now propose to make the legislation retrospective. They are international crimes of the most serious gravity and demand an exceptional response. When we met in Committee on 7 July and I undertook to bring forth amendments, I said that we would cover the period from 1 January 1991 as far as the legal principles applicable to retrospection would allow. Our amendments deliver that. The date is pivotal in the development of international law. It is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute these three types of crime. It allows us to adopt the same date for all three areas, and it is not too far back to make successful prosecution impractical.
Our amendment is complex but it reflects the complex nature of the circumstances and the 2001 Act. We spent the summer studying in depth each element of the offences listed in the 2001 Act to identify the extent to which they could be properly tracked back to 1991. This has been a long and arduous task. We are satisfied that this can be done in a straightforward way for genocide and some categories of war crimes. It is clear that those offences and all their elements were fully recognised in international law by 1991, and our amendments reflect that.
The position in the other areas is less straightforward. While the vast majority of offences were recognised as criminal in international law by 1991, a small number may have been recognised at that time in a narrower form than appears in the 2001 Act, and a very small number may not have been sufficiently recognised at all in 1991. Indeed, international law naturally developed over the period in question, and it is important that our clauses cater for this to ensure the maximum possible coverage for that period—1991 to 2001. We have therefore developed a hybrid approach providing absolute certainty where possible, but elsewhere including a requirement that the relevant conduct amounted in the circumstances at the time to an offence under international law.
I pause briefly to observe that the hybrid approach does not mean that the offences where the requirement is not specified can be prosecuted even if they did not amount at the time to offences under international law—quite the contrary. It is only because there can be no doubt that they were fully recognised as criminal in international law throughout the relevant period that the requirement is not needed to ensure that we comply with the legal principles applicable to retrospection. I make one last point on the subject. With the same caveat as to the need for the conduct to have constituted a criminal offence in the circumstances under international law, our amendments provide for the ancillary offences and other forms of liability in the 2001 Act also to be tracked back to 1991.
I turn to the question of penalties. Our amendments broadly provide for the same penalties for the earlier period as in the 2001 Act. These are 30 years, or life where murder is involved. However there are two areas where, because domestic offences already existed at the relevant time, we are limited by the ECHR, as we cannot now impose a higher penalty than existed at the time. Those are domestic genocide—hopefully, fairly rare—which was covered at the time by the Genocide Act 1969, and grave breaches of the Geneva Conventions, covered at the time by the Geneva Conventions Act 1957. Where murder is involved, a life sentence is available. Otherwise, the maximum penalty is 14 years. Our amendments therefore adopt that maximum penalty in those two areas only, but otherwise provide for a maximum penalty of 30 years.
I turn to the important question of who the offences should apply to, which has taken up many hours of discussion and controversy. This is the issue dealt with in the amendment tabled by the noble Lord, Lord Carlile. This has been the subject of much discussion, and I am more than delighted that we have reached a decision on which we can agree.
We fully understand the concerns of those who argue that we should take jurisdiction over all those present here in respect of heinous offences, but to do so would be a highly unusual step. The arguments for retaining a definition based on residence—albeit residence plus—are strong.
First and foremost—and here absolutely on line with what the noble Lord, Lord Carlile, said—we believe that our overriding objective must be to deny the UK as a safe haven for serious criminals of this kind. It is arguable that those who are here only briefly might not be using us as a safe haven. Such jurisdiction is not required by international law, and we have always, whichever Government have been in power, been—in my view rightly—wary of assuming jurisdiction beyond our nationals and, exceptionally, residents without a clear international consensus to do so.
However, we must take our responsibility for those who are living here very seriously. Our first aim must always be that they should face trial in the country where the terrible crimes of which they are accused were committed. Where the countries concerned need help to bring their systems up to the point where they can meet human rights requirements, we will continue, as now, to work with them to help them to achieve that, but where trial in the country where the alleged crimes took place is not possible and the people concerned are living here, we must be able to act.
The definition of “resident” in the 2001 Act is left to the common sense of the courts to apply. We believe that the courts will do just that, but as was said in July, the amendments are intended to provide more certainty in some crucial areas of concern.
First and foremost, I must put firmly on record that what we are proposing here is limited to this legislation. It is justified by the extreme nature of the offences in question. We do not intend the amendments to impact on the meaning of the term “resident” in other legislation.
Our proposals have two elements. First, they contain a specific list of categories of people who are to be treated as resident to the extent that this would not otherwise be the case. Again, the caveat is important. The fact that someone falls into a specific category has no bearing on whether, if we had not taken this action, he might or might not have been considered a resident, and the provision of the list does not change the basic test—as before, any person who is a UK resident, regardless of whether they fall within this list, is covered by the Act. Secondly, we have included a non-exhaustive list of considerations that a court must take into account in determining the issue of residence.
I will turn first to the categories. They may well appear somewhat complex and daunting. I will run through them briefly. In broad terms, they are categories of people who are living here or want to live here or who are working or studying here. In more detail, the first group covers all those in the UK who have applied for indefinite leave to remain here, including those who are in the UK and whose application has been rejected. Those who have such leave will be covered wherever they are. In similar vein, the amendments cover all those who apply for asylum or make a human rights claim from the moment they arrive here, irrespective of the stage reached in their application or failed application. This will therefore include those whose applications have failed but who cannot be deported for any reason. Those whose claims have succeeded will also be covered wherever they are. Both these categories also cover anyone else who is here in the UK and who is covered in the claim; in other words, dependants, including spouses, named in the claim.
The amendments also cover any other person who is liable to be removed or deported from the UK but who cannot be removed or deported for human rights reasons or practical reasons, including those against whom a deportation order has been made. The third group comprises anyone who is here illegally, including illegal entrants or those who have overstayed their entitlement to be here. The fourth group comprises persons who are due to be deported on the ground that it is conducive to the public good to do so but who are still here because they are appealing that decision. The fifth group are all those here in lawful custody as defined in the amendment. Finally, the amendments cover all those in the UK who have leave to enter or remain to work or study.
Secondly, the amendments include a non-exhaustive list of considerations a court may take into account. These cover time—the period someone has been or intends to be here—purpose—why the person has come here—family or other connections to the UK and property. This list is non-exhaustive, but we think all these are points that it is worth ensuring a court bears in mind. It is a complex definition, but we believe it will provide certainty in crucial areas, and we believe it meets the valid concerns of those, including the proponents of the amendment moved by the noble Lord, Lord Carlile, that first, we must be able to deal with those living here who are alleged to have committed such heinous crimes; secondly, we must be able to deter others from coming here; and thirdly, if such people come here, we can ensure that, once detected, they will depart.
It is also important to point out that if individuals arrive in the UK and are known to be suspected of an offence of such a serious nature, they can be turned back at the port of entry. If it comes to light that a person who has been allowed in to visit the UK is a war criminal, he can be deported on the ground that it is conducive to the public good to deport him. There is no question that we have to tolerate non-residents here who have committed these sorts of crimes. The provisions will apply to England, Wales and Northern Ireland. Any similar changes in Scotland would be a matter for the Scottish Parliament and Scottish Executive to consider. I understand that the Scottish Executive is considering the issue as we speak.
To answer the questions asked by the noble Lord, Lord Hannay, I cannot refer to individual cases, but in respect of the two examples he referred to, on the military education study question, visiting armed forces who come to this country for the purposes of military training and study will not be within the list of categories of new Section 67A(1). They do not require leave to enter or remain in the UK. UK forces are already fully covered by the 2001 Act, as the offences apply to all persons subject to UK service jurisdiction. The list at new Section 67A(1) includes persons given leave to enter or remain for the purposes of work or study. Those coming here for the specific purpose of business for six months will be coming here for the purpose of work. As I understand it, the Rwandans would be caught by the provisions in our Bill.
I am sorry that I have taken so much of the House’s time, particularly so late, but, as the noble Lord, Lord Henley, said, these are important amendments that have been tabled late in proceedings. We are all united in the desire to tackle heinous crimes of this nature as effectively as possible, and I hope the House agrees that our amendments achieve this. As I said, I am grateful to the noble Lord, Lord Carlile, and his co-signatories for their amendment and for the constructive and helpful discussions that we have had. I hope that, when the debate finishes, the noble Lord will withdraw his amendment and the government amendments can proceed into law. We believe that, when they do, Parliament will have played its part in improving this country’s standing in the world.
My Lords, I am grateful to the Minister for the very clear way in which he has explained these important and complicated amendments, and I pay tribute to my noble friend and all those others who have done much more than I have to achieve the position that we have now reached.
I speak really only because I am a member of the Joint Committee on Human Rights, which produced a report in August on the impunity gap in the UK with regard to genocide, war crimes and crimes against humanity. We recommended that the residence test be changed to a presence test. What is most welcome about the government amendments is, as has been said, the decision to extend the jurisdiction of UK courts to prosecute genocide and so on back to 1 January 1991. That closes a very important impunity gap whereby Rwandan genocide suspects living in the UK could not be brought to account.
However, the Government have not changed the law to allow suspects who are present in the UK to be prosecuted unless, as I understand it, they are either a national or resident in this country. The JCHR, and if I may say so the noble Lord, Lord Hannay of Chiswick, regarded a presence-based test as far simpler than a residency test not least because the lack of a single definition of residence under the law of England and Wales made the test of residency uncertain. The International Criminal Court Act 2001 gives the rather unhelpful definition of a UK resident as a person who is resident in the UK.
When Sir Ken Macdonald QC gave evidence to the Joint Committee on Human Rights, he confirmed that there was no settled definition of what residency amounts to in English law and that residency means different things in different statutes. The witnesses who came to the committee expressed concern that several groups of suspects might benefit from the flexibility of a residence requirement. I mention this because I should be grateful if the Minister could confirm my understanding. Four groups in particular were identified: short-term visitors, such as those in transit or on holiday in the UK; people who are in the country for a longer period to undergo medical treatment; asylum seekers waiting for decisions; and short-term students.
As the Minister has explained, the Government have in essence given a detailed and unusual extended definition of residence that comes very close to a presence requirement. I welcome this but I want to be sure that I have got this right. The Minister keeps emphasising that, only for the purposes of this legislation, some of the categories that one would not normally regard as resident at all are to be treated as such for this extended definition. For example, one would not normally regard a failed asylum seeker as resident for other legislation, but such a person quite rightly is included here. I have mentioned four categories: short-term visitors in transit or on holiday, people undergoing medical treatment, short-term students and asylum seekers waiting for decisions. As I understand it, asylum seekers awaiting decisions are covered and are to be treated as resident for this purpose. The same is to apply to short-term students who are lawfully here, I hope that that is right. I am not sure about short-term visitors in transit or on holiday, but I imagine that they are covered. Equally, I am not sure about people undergoing medical treatment, and whether they would be regarded as resident for the purpose of the extended definition.
Finally, at Second Reading I raised the problem of the nationality requirement. The alternative basis for jurisdiction is UK nationality. The problem I mentioned was the position of a UK and an Iraqi citizen involved in a crime against humanity fleeing to the UK. The UK national could be prosecuted here in the UK, but the Iraqi national could not be unless he satisfied the residence requirement. I do not know whether what I have just said is correct.
Those are my points and I hope I have correctly understood the way in which the Government have moved. What it comes to is that they have moved close to a presence test but have prescribed on the face of the statute that which would otherwise be unclear, which is the special meaning of residence and which I regard as welcome. I should be grateful if my understanding could be corrected if I have got it wrong, as I probably have.
My Lords, I can be very brief. I intervened earlier and I apologise, but I was hoping to speed up the processes of the House by persuading the Minister to speak immediately after the movers of the amendment. Perhaps I may set out the views of these Benches. First, we are grateful to the noble Lord, Lord Carlile, for all he did at the Committee stage in bringing these issues to the attention of the House and ensuring that they were addressed. We know that much thought has been given to this matter over the ensuing months, and on this occasion, dare I say it, may I say how grateful we are to the Government that they have addressed these issues? It is to their credit that they have prepared their own amendments, albeit five pages of them, in response to those of the noble Lord. We are also grateful to the Minister and his department for keeping all noble Lords who are interested in these matters up to date with the evolution of the Government’s thinking as it developed.
I can put it very briefly if I say that we are relatively happy with the Government’s amendments. The list covers most, if not all, of the categories of persons who could be said to have intended to come to the United Kingdom for any significant length of time, and we therefore offer our support. The effect will be to prevent the United Kingdom being treated as a safe haven for those alleged to have committed crimes of this sort, and we hope that the noble Lord, Lord Carlile, and those who support him will also feel able to support the Government’s approach. Obviously I do not know what the noble Lord intends to do, but we will hear from him and, I hope, from the Minister in due course.
My Lords, I shall try to answer the noble Lord, Lord Lester. I thank him and also the noble Lord, Lord Henley, for his helpful remarks earlier and for his support for what we are doing. It is much better if we can agree as a House on something like this. I should have mentioned the noble Baroness, Lady O’Cathain, who has just been in her place, because she, too, played an important role when these matters were discussed at an earlier stage. The noble Lord, Lord Carlile, mentioned—and I should mention also for the sake of completeness—my fellow Minister in the House of Commons, my honourable friend Claire Ward, and the Secretary of State, who both played leading roles in arriving at this final achievement.
Short-term visitors would not come within these categories, but if it is believed that they are suspects they could be deported on grounds of being not conducive to the public good. As to people undergoing medical treatment, if they are here for a long period they could, too—not necessarily but, as a matter of common sense—be deported if believed to be suspects. Asylum seekers waiting for decisions are covered, as are short-term students. That is all I need to say at this stage.
My Lords, I am grateful for all the speeches in this important debate. My understanding was exactly that of my noble friend Lord Lester and I am grateful for the confirmation that the Minister has just given about the four categories raised by him. I am also grateful for the explanation that the Minister gave about the consequences of retrospectivity. Those of us who were concerned about these provisions recognised the difficulties and a solution has been reached.
The noble Baroness, Lady D’Souza, raised a question—which has not been answered—as to whether there will be a dedicated unit in the Metropolitan Police. I share her hope that such a unit will be created. It is probable that the Minister will be unable to answer that question immediately but perhaps he will be kind enough to write to those interested in due course when the consequences of these provisions for the Metropolitan Police have been absorbed.
With all that in mind, I repeat my gratitude to the Government and feel able to withdraw the amendment.
Amendment 65 withdrawn.
66: After Clause 55, insert the following new Clause—
“Exceptions to offence of assisting suicide
Notwithstanding sections 53, 54 and 55, no offence shall have been committed if assistance is given to a person to commit suicide who is suffering from a confirmed, incurable and disabling illness which prevents them from carrying through their own wish to bring their life to a close, if the person has received certification from a coroner who has investigated the circumstances, and satisfied himself that it is indeed the free and settled wish of the person that they bring their life to a close.”
My Lords, I wish to explain why I am bringing forward the amendment at this point. As some of your Lordships know, I tabled the amendment for the Committee stage at which another amendment in the name of the noble and learned Lord, Lord Falconer, and others covered a wider basis. I was asked to withdraw my amendment to enable the focus of debate to be clear so that your Lordships’ House could consider it. However, both at the time and on reading Hansard subsequently, it became clear that there were certain important matters in my own consideration of the question which I wished to bring back to your Lordships’ House, not for the purpose of pressing them to a vote but in order that we may facilitate the community as a whole in struggling with a difficult question that is now a matter of national discussion, particularly with the consultations of the Director of Public Prosecutions
It seems to me that in general debate and, particularly, when there is a vote in your Lordships’ House and the other place, there is a tendency to polarise and to press the case for one side or another rather than to explore what is involved in complex and difficult moral questions. I look at this issue and see it, in a sense, as a matter of disability rights; for me, that is what the question is about. The terms of the amendment address the situation where someone is suffering from a confirmed incurable and disabling illness which prevents them carrying through their own wish to bring their life to a close.
It is always very difficult to put oneself in another person’s place or to put oneself in a context other than the one which one experiences, because we tend to see things from our own perspective. However, we are all rather different in our approach to these matters. A disabled person or a person suffering from an illness can no more speak for all other people who are similarly disabled or suffering from that illness than an able-bodied person can speak for all others who are able bodied, because we see and approach things differently.
Let us consider the case of someone who wants to embark on the wholly legal activity of bringing their life to a close—it is no longer illegal, although there was a time when it was. They are living in a state of deep and ongoing distress and have come to a free and settled conclusion that this is what they wish to do, but they are, by the nature of the disorder and its disabling effect on them, unable to carry their own wish through. I ask your Lordships so far as possible to put yourself in that situation and to consider what it would be like to have come to the conclusion that one strongly wished to do that, but to be unable to lift a finger in order to act on one’s own wishes and to be kept in that state of distress, pain and discomfort until one was in torture and quite unable to do anything about it. One’s family and friends would have to endanger themselves in respect of the law in order to render the remotest assistance.
We have passed disability legislation—there was a debate on disability during the dinner hour earlier on in your Lordships' House—to make sure that, for example, if someone has a wish to pass a university examination but is in some way disabled from carrying through their studies or implementing the exam questions, the authorities provide assistance to the person. However, in this particular circumstance, not only do we not enable assistance but we make it a crime to assist someone who is living in an utterly tortured state and has come to the conclusion that they wish to end it. That conclusion is critical, because someone who is confirmed to be suffering from an incurable, progressive disabling disorder might come to the completely different conclusion that, whatever happened, they wanted to continue their life, and that, whatever their pain, difficulty or discomfort, they wanted to remain in a relationship with those who were important to them. Of course, such a person should be facilitated in every way to carry on with their life.
As someone who works with people who sometimes come to the conclusion that they want to bring their life to a close, I am not speaking in some kind of academic fashion. That is rather important. For me at least, morality and ethics are not some academic debate. That is what one actually does in relationships with real people; it is not a matter of speculation.
There are those who find themselves in the kind of context described in the amendment; whatever the odds, whatever the pain, whatever the discomfort, whatever the disability, they want—and I believe that it is the majority of people who find themselves in these circumstances—to sustain themselves and their relationships for as long as is remotely possible. Their doing so must be facilitated. However, to recognise that we are probably talking about the overwhelming majority of people does not mean that one should dismiss that important minority of people who have come to a free and settled conclusion that that is not what they wish to do. It is not that one or other should be forced in any way.
That brings me to one of the questions, because it has often been said that the problem about facilitating that minority’s wish to take those steps is that it is the thin end of a wedge and that nasty or unpleasant friends or relatives might push those who did not wish to do such a thing into doing it. That is not an unreasonable concern at all. Then one asks if one should dismiss it because of the possibility, indeed the likelihood, that there would be such circumstances. I do not think so. One could justify that only if one had come to an a priori decision that in no such circumstances would one ever give any assistance to anyone in these circumstances. If not, and if one comes to a conclusion that there might be such circumstances but they need protections, it is an incumbent duty to look at what the protections might be to ensure that nothing malign is happening. In a sense, that is what this debate is about. It is an opportunity for people who say, “This is a worry and a concern, because people might be forced in a direction that they did not want to go, one way or t’other, and here is an alternative way, rather than the one in Amendment 66”. I do not regard this as any kind of Holy Writ. It is a set of propositions to see whether we can find a way in which to take a step forward in this important and difficult question, which does not apply to huge numbers of people but nevertheless is important.
One question put to me was whether medical practitioners were suitable people. Well, I do not think that they are. If a person is to have the comfort, guidance and opportunity to come to a free and settled conclusion and to have a judgment made as to whether they had been put under pressure or whether it has been free and settled, someone in a judicial office is the right person to do it—preferably someone whose approach is inquisitorial rather than adversarial. That is why I proposed that it should be coroners, because they are used to trying to find out the truth of what is going on rather than what is simply the point of law. A perfectly legitimate argument could be made that someone other than a coroner should be doing this, and I entirely accept that. However, there is a requirement for someone who understands the law, is used to trying to find out the truth of what is going on and is sensitive to people and their families and the understanding of things and who has, by nature of their office, the facility to call people, give reports, explore the question and try to come to a reasonable conclusion. That would be someone who could call a specialist to say, “Is this an incurable disorder, or a progressive disorder?”. They could call a psychiatrist—or more than one—to ask, “Is this person suffering from a depressive illness which, if treated, would resolve, and they would no longer have the wish to bring their life to a close? Or is this someone who is not suffering from a mental illness but has come to a clear, settled and thought-through wish to take this action but is not able to do so by nature of their disability?”.
That is the chain of thoughts. Someone finds himself in this circumstance, wishes to do something, is unable to do so—and the protection is that it is not his own physician or even an independent physician who makes the judgment. It is someone who is legally and by experience qualified to explore these questions. Then, if they certify that this is the case and that the person has come to a free and settled view, they can provide a certificate, which would ensure that anyone who rendered assistance—although that does not mean that assistance has to be rendered—would not be breaking the law. Then we would not have what we are frankly in danger of having, which is an Irish solution to the problem. The Irish solution to the abortion problem is that you pass it on to somebody else and then feel justified; you are glad that somebody else is dealing with the problem. Sometimes we actually need to face the problems, struggle with them and try to come to a reasonable conclusion.
In such questions, it is often thought that one should maintain a conservative approach to such matters, and not change because if you do so you jeopardise things and move into danger. That is a serious misjudgment. There was a time when the majority of the medical profession believed that it was ethically wrong to provide chloroform to relieve the suffering of women in labour. That was theologically justified because, of course, a woman was to bring forth her children in pain. That was the view of society and the view of many doctors, although not all, thankfully. Now, we would not only regard that is not appropriate, we would regard it as not a moral position. It was the same with suicide. There was a time when it was regarded as a crime. Now, we do not see it in that way. We try to come to an understanding of it. These positions that we take are not immutable. Indeed, sometimes we come to a view later that is radically different from the one that we had earlier on.
If the noble Lord maintains that doctors and the medical profession have always been justified in their ethical and moral stance and have never had to change it, that is a position to which I would not hold, nor do I believe that he would. I offer it as an example, and we could look to providing the chapter and verse that he wishes, but that is not the issue. The issue is whether one is actually concerned to address the real pain and suffering in another person, or justify one's own present position and fears and concerns about changes that might take place. Or should one struggle with the difficult question of trying to find ways of ensuring that, in different circumstances, people are protected from the discomfort and pain that they are in?
I present this as a real problem, which is a matter of debate in our community and legal services. I invite the House, if it has other thoughts about how this matter might be addressed, to provide those for further consideration and thought, not necessarily in this Bill, but in future when, without any doubt, this will come back again and again and, I hope, with more light than heat, which is the contribution that I trust we make.
I would like to speak first on this, because although there are fundamental issues involved in this amendment, there are also some practical issues. The coroners were not consulted. They would have been pleased to have had the opportunity to discuss the amendment with the noble Lord, Lord Alderdice, but they were not given that opportunity. I have from the Coroners’ Society of England and Wales a number of very practical objections, not of a fundamental nature, but of a nature that would make it very difficult for coroners to undertake this particular task—if indeed the House thinks that it is appropriate for it to be undertaken by anyone.
First, the coroners make the point that they are concerned with post-mortem investigations, not ante-mortem investigations. Their jurisdiction is derived from the presence of a dead body. The amendment would introduce an entirely new and, they consider, alien duty for coroners to provide an investigation before death. It would make the coroners potentially witnesses to facts, which is not their position as judicial officers. Unlike in Northern Ireland, there is no single national coroner service, nor under this Bill will there be, because each coroner will maintain his own separate records and would not have access to any national central register or database. Every “cross-jurisdictional border” inquiry, as it is known, generates its own series of letters and e-mails, so if the proposals were implemented there would have to be some arrangement for information to be provided across these borders.
It is thought that there would be a significant number of coroners who would, as a matter of personal conscience, have objections and refuse to carry through this function. There would therefore have to be a conscience clause, permitting individual coroners or their officers to refuse to participate in the ante-mortem inquiry and certification process. The other point, which is of some importance to the Government and the main opposition parties, is that there would be very serious cost and other resource implications in an already overstretched and underfunded service.
I hope that noble Lords will take those very practical points into account. In particular, if the noble Lord is going to propose that a particular service should take on a totally new duty, the very least courtesy, I suggest, is to ask it first.
My Lords, it is late; I will be very brief. The amendment yet again singles out sick and disabled people with progressive conditions for special treatment under the Coroners and Justice Bill. In effect, it proposes that they be regarded as more eligible for assistance with suicide than the rest of us. This is not equality for all. I do not wish to repeat myself; many noble Lords here today have already heard me speak at length about the kind of negative message that such an amendment would send out about the lives of those who are significantly disabled or terminally ill. My mailbag is full, and every day there is more about not wanting assisted dying than about wanting it. Noble Lords have also heard my appraisal of how these messages can translate into dangerous consequences for those in the most vulnerable situations.
Report stage is not the time for lengthy expositions of why this amendment would most definitely afford a lesser standard of protection under the law, especially for those who may feel under pressure to end their lives. I am grateful for the assurance that noble Lords will not press this amendment to a vote, because this is neither the time nor the appropriate approach for tackling such a deeply ethical and complex area. If we support this amendment today, we say that terminally ill and severely disabled people do not deserve the very best forum and process to deliberate their life and death choices. The amendment has profound, far-reaching consequences, which strike fear—I am afraid it is fear—and apprehension into the lives of those who struggle to make society recognise that their lives have value and should be supported. We must treat this arena with the greatest respect, care and thorough understanding towards all sides of the spectrum. This is not the place, and it is not the time.
My Lords, I have three things to say. I will not indulge in any generalities, my distaste for assisted suicide having been well enough advertised in earlier debates. We had a wide-ranging general debate earlier that, with respect, I should have thought might have pre-empted the debate that we are having tonight. I thought that the debate was going to be about an amendment, as was advertised by the noble Lord, Lord Alderdice, but it is actually a debate of a very general sort—so we are back to where we were a while ago.
I wish to say three things. First, the amendment singles out sick people for special treatment under the Coroners and Justice Bill and proposes, in effect, that they be more eligible for assistance with suicide than the rest of us who are fit, well and healthy. It is very discriminatory in that sense, and that surprises me. The provision under the noble Lord’s proposed clause may possibly suit a small number of highly resolute sick people who want assistance to end their lives, but it would afford a lesser standard of protection under the law to others who may feel under pressure to end their lives, whether from others or from within themselves. As such, I regard this provision as both discriminatory and highly dangerous, as the noble Baroness, Lady Campbell, has just said so clearly. It is axiomatic that the law must afford equal protection to all citizens regardless of their age, sex, ethnic origin, religion and, indeed, state of health. That is why I regard this suggestion from the noble Lord, Lord Alderdice, as essentially highly discriminatory.
Secondly, and here I am a mere echo to the noble and learned Baroness, Lady Butler-Sloss, the task of assessing applications for would-be suicides’ assistants’ licences is manifestly not a job for a coroner. The noble and learned Baroness has clearly explained to the House that the role of the coroner is to investigate and record causes of death, not to hand out licences to those who wish to help death to occur.
Thirdly—and I am deeply shocked to learn from the noble and learned Baroness that the coroners themselves have not been consulted; I thought that that happened automatically in the practices of your Lordships’ House—to the best of my knowledge, coroners do not generally have the professional skills that would be necessary properly to investigate whether an apparent wish for assistance with suicide did indeed, represent,
“the free and settled wish of the person that they bring their life to a close”,
with all the medical, psychiatric or psychological training that that demands.
I am extremely surprised that the noble Lord should have brought forward these suggestions in a way that has obviously caused great offence and concern to those who work as coroners to help us, let alone set them within a framework that is so discriminatory in its design.
My Lords, I have some sympathy with the noble Lord, but perhaps I might just make these remarks. Having had a full debate in Committee, I imagine that the House will prefer to be spared a surfeit of impassioned pleas at this stage in the Bill’s passage and at this hour. At the end of the debate on the amendment of the noble and learned Lord, Lord Falconer, the Minister suggested that an amendment to the Coroners and Justice Bill was not the best way of dealing with the matter, and that the best way of pursuing it further would be through a Private Member’s Bill. The noble Lord may feel that that would be the best way of pursuing his amendment also; indeed, from the way that he moved it today, it seems that that may well be so. We will shortly have the guidance from the Director of Public Prosecutions, and the noble Lord may feel that it would be best to wait to see what effect that has before further stirring this particular pot.
At the same time, given the obvious concern that exists about this issue across the House, it might assist our further consideration of these matters if the Government initiated an impartial inquiry into the whole question of helping another person to die. This would be in keeping with the noble Lord’s desire that the issue should be approached in the round, not simply in an antagonistic fashion. The Minister said, in response to a Question from the noble Lord, Lord Warner, in this House on 20 October, that he would take away the suggestion of an impartial inquiry. I strongly support the noble Lord’s request and very much hope that the Government can be induced to respond positively to it.
My Lords, the amendment is not about assisted suicide, but rather euthanasia. If a person cannot commit suicide, then the assistance is not assistance with suicide, it is murder, manslaughter or euthanasia depending on the situation.
The Dutch experience has shown that a considerable number of people do not feel psychologically able to commit suicide themselves but find the passive role of holding out their arm somewhat easier. We have evidence from Seale’s work that there is no physician-assisted suicide in this country. The only thing I can commend in the speech of the noble Lord, Lord Alderdice, is that he did not see this function as being part of a medical practitioner’s role. I agree. I was horrified that he did not stress that the role of medical practitioners is to relieve patients’ distress.
The amendment covers most medical conditions from childhood onwards. Disabling and incurable illness is anything from arthritis to diabetes. There is not even a requirement here that the disease is particularly advanced. There is no requirement that the person has capacity. How long should their so-called “free and settled wish” persist? Does the certificate ever expire before the patient? Can parents get a certificate for their child? I could go on but I will not bore the House.
The concern of the coroners has to be listened to very carefully. This is alien to their remit. If such a service were set up, it would be inundated. Oregon’s physician-assisted suicide prescriptions, which have been rising year on year, are an indicator. If we extrapolated those on a population basis, we would have about 1,400 requests. If we took the Dutch figures, which include euthanasia and would fit with the wording of the amendment, we would have around 12,000 requests. That would be a considerable workload for a coronial service which is already working hard. Coroners’ certificates would need monitoring; otherwise, we might find fakes offered for sale on the internet, just as we do for ID.
This is Report stage. The amendment is so flawed that it seems to be euthanasia on demand masquerading behind a sanitising cloak of assisted suicide, without clear safeguards or monitoring, and we have already clearly rejected assisted suicide on two occasions. I fear that this amendment would sabotage the clause that was clearly drafted to ban internet suicide promotions. Such a ban is much needed.
My Lords, looking at the amendment, I am struck by its dismal wording. It states,
“if assistance is given to a person to commit suicide who is suffering from a confirmed, incurable and disabling illness which prevents them from carrying through their own wish to bring their life to a close”.
In other words, the noble Lord, Lord Alderdice, believes there is only one option if one is suffering from a confirmed, incurable and disabling illness; namely, the wish to bring one’s life to a close by suicide. This is not the only option. Not only is it not the only option but I submit that those who indicate or imply that this is the only option are causing huge distress to those who have received the bad news that their illness is incurable.
I go off on a tangent for a moment in asserting that doctors are not infallible. They can, and do, make a misdiagnosis. They certainly can, and do, make a misprognosis. Nobody can accurately forecast the time and nature of one’s dying. I go back to the main point of my intervention. The very wording of the amendment holds no hope for anyone facing death. The only option advocated by the noble Lord, Lord Alderdice, is to end it all in one’s own time and at one’s own wish. This is a travesty.
The previous two debates on assisted suicide that we have had in this House on the Bill of the noble Lord, Lord Joffe, and the amendment of the noble and learned Lord, Lord Falconer, have shown without peradventure that this House has little appetite for the issue. Nobody is thinking about the devastating effect these debates have had on those who have had the ghastly diagnosis that their illness is terminal. The publicity about Dignitas, the court cases and the endless press comments make all of us think, but what do they do to those who have had this diagnosis?
Let me tell you about my first-hand experience. In March, one of my dearest friends of 42 years was diagnosed with motor neurone disease. We were extremely close friends, to the extent that our husbands were involved in our friendship. We spent Christmases and went on holidays together. On the day of the diagnosis, I spoke to my friend within one hour. She asked only one question: “Can you help me get to Switzerland?”. I had to say no, which was very difficult. I felt truly responsible to come up with an alternative. My immediate reactions were, first, to remind her of her total belief in her saviour Jesus Christ and, secondly, that I had to look frantically for help. I turned to two wonderful colleagues in this House, who I will not name.
Then began an amazing and encouraging period of experiencing the wonderful, caring and supporting characteristics of the services that are available. They included the local authority services of making adjustments to the home and the NHS in its instant response to whatever emergency arose. Above all, the hospice movement offered love, respite and the experience of feeling safe. Let us face it, the nearest and dearest of people who face this diagnosis are not necessarily the people who can deal with it best. The demands on them in emotional terms are absolutely awful, which I know from family experience.
My friend was registered with the hospice through the NHS. Every four weeks she had a week of respite for her, the ill person, and her husband, who was the main carer. Once a week, an ambulance was provided by the NHS. It took her to the hospice for a day of physio, occupational therapy, a bath and a hair wash, all of which were extremely important to her. As my dear friend explained, being with people who were much worse off than her made her feel truly humble and added a dimension to the end of her life that she had never experienced in 69 years. She felt safe in the hospice and, most of all, she was overwhelmed by the total dedication of the loving, caring and encouraging hospice workers.
My dear friend died less than six months after the prognosis of 18 months—again, it was a misprognosis. She died peacefully and accepted that she was going to meet her Maker. If she had gone to Switzerland, would she have had that loving, caring end? I do not need to answer that. There is an option to suicide and it is up to all of us to make it much more available to all. We must work towards that, but, in the mean time, please let us stop condoning, exulting and encouraging assisted suicide.
My Lords, before this debate, I had sought out the noble Lord, Lord Alderdice, and told him that I would not be supporting this amendment, rather on the lines outlined by the noble Lord, Lord Low. I had hoped that we would be moving towards a commission of inquiry into care at the end of life, which includes the way in which we help people to die. However, I have to say that, while I have listened to the illogical and vituperative messages from other Members of the House, I do not think that any of those noble Lords has listened to the arguments being put forward by the noble Lord, Lord Alderdice.
Let us forget the coroners for the minute; I do not think that anyone would see them as particularly appropriate people to do this. The noble Lord was pointing out that at the moment people with profound disabilities and severe illnesses, particularly those who are at the end of their life, are disbarred from making a decision that the able-bodied among us can make if we feel like it without the need for assistance. In this House, we generally support strongly the rights of people with a disability to access goods, services and care and to call forth special circumstances of assistance that are appropriate to individual needs. That is all that this amendment seeks to do in respect of a personal wish to end one’s life. It is a wish that the rest of us are prevented from carrying out only if we have a mental disorder within the meaning of the Mental Health Act, although I accept for the moment that most people who wish to end their lives may have a mental disorder within the meaning of the Mental Health Act and do not therefore have a “free and settled wish”, as it is rather unusually expressed in the amendment.
The amendment, on the face of it, presses for equality for people with disabilities and serious illnesses, which I applaud. However, for all the reasons that were set out by the noble Lord, Lord Low, I do not support the amendment as it is—and, of course, as we have said, this is not the time and the place. We need a further debate and, to look at all the issues, we probably need a further Private Member’s Bill to come forward. However, I am amazed that people should have failed to listen to what the noble Lord, Lord Alderdice, was actually saying.
My Lords, this amendment is about life and death, and there are not many matters of greater import. We have to look at it a little broadly. The law provides that we, as individuals, have no right to take life except in self-defence. It provides that the state, in acting for society, may take life or license the taking of life only in defence of the state or society itself. In short, the right or obligation to take life, or to license the taking of life, is strictly fettered and confined, and I believe that it should be so.
Many of those who regard humankind as no more than elevated animals are no less wary of fraying and fretting at those constraints than those who believe that life is God-granted and that the taking of life is to infringe on divine territory. Of course, that common position is less assured over whether we have the right to dispose of our own lives and, even less so, on whether we have the right or the obligation to assist others to do so. It seems to me that to claim, as the noble Baroness just did, that it is an act of discrimination not to assist a disabled person to take their own life, because an able-bodied person could take their own in the same circumstances, is a curious argument. One might as well say that, if a person is mentally ill and seeks to take their life, because they are disabled we should assist them to do so, because if they were able and had come to that conclusion they would have been able to do so. That is totally absurd.
Amendment 66 would decriminalise, under prescribed circumstances, the giving of assistance to certain classes of people to take their own lives. It would require a particular group of people, the coroners, to issue licences of immunity—that is, certificates that would turn what would otherwise be a criminal offence into a normal act that was not criminal. I do not like the idea of giving certain classes of people that right or obligation to say in advance that a certain course of action, which would otherwise have been against the law, is within the law. In my view, that is to tread on a slope that is not merely slippery but downhill to an extent where not even the ingenuity of the noble Lord, Lord Alderdice, can effectively prescribe limits.
I cannot imagine coroners welcoming this task of certifying who would qualify for a certificate of the kind described in the amendment, or which other group of people would be suitable for the job. Indeed, a coroner would have to decide whether the individual was capable of making a free and settled decision that he or she wanted to kill themselves. What about those suffering from dementia? How would they be treated? Would they be judged as being capable of taking a decision or not and, if not, would we be discriminating against them?
I am not sure that the noble Lord, Lord Alderdice, really has his heart in this. The expression,
“bring their life to a close”,
has about it a taint of weasel words to avoid the use of the more accurate words “kill themselves”. The plain fact is that there have been no prosecutions of people who have facilitated suicide by delivering those for whom life has become an excessive burden to the suicide factories in Switzerland. The fact that there could be such a prosecution may have deterred—indeed, I am sure that it has deterred—the compassionate from assisting the act of suicide in that way. Far more important, it has also deterred those who might have exerted pressure on a weak, ill and vulnerable person from whose death they might profit. In my view, the law is working perfectly well, or in some cases not working at all perfectly well, and we should leave it alone.
My Lords, I, too, hope that we shall not proceed with the amendment, despite the power of the speeches of the noble Lord, Lord Alderdice, and the noble Baroness, Lady Murphy. Many of the things that I might have said have been said much better by the noble and learned Baroness, Lady Butler-Sloss, and in her most powerful speech by the noble Baroness, Lady Campbell.
I want to take up two points from what the noble Lord, Lord Alderdice, said. First, it sounded as though it was likely that those in this tragic and difficult situation would become the subject of court cases. There would have to be ways of discovering when an illness was confirmed “incurable and disabling” and what a “free and settled wish” was. Surely the experience of all of us who meet people in these sorts of circumstances is that the last thing that will be helpful for them, or which they want, is to become the subject of a court case.
Secondly, I do not think that the parallel being made with the disability legislation is accepted. I believe that it is true, as others have argued, that any legalising of assisted suicide will inevitably put pressure on the sick and vulnerable. It is not so much that relatives or others will deliberately pressure them but rather that there will be those who seek assistance to end their own lives because they consider themselves a nuisance. That is a state of mind that those of us involved in pastoral work recognise only too well as dangerous and destructive to the life of that individual.
Let us reject the amendment and increase our efforts to support and encourage palliative care and the work of hospices, which provide so much more appropriate a way forward for the tragic circumstances that the noble Lord, Lord Alderdice, described for us.
My Lords, it is plain that there is little or no support in the House this evening for the amendment tabled by my noble friend Lord Alderdice, even from the noble Lord, Lord Low, the noble Baroness, Lady Murphy, and me, who supported, and remain supporters of, the amendment tabled by the noble and learned Lord, Lord Falconer, in Committee. Given that this debate has lasted for three-quarters of an hour, can I assume that it is now time to bring it to an end?
My Lords, I agree entirely with the noble Lord, Lord Goodhart. Perhaps I may make one or two final comments and then the noble Lord, Lord Alderdice, will respond. As the House knows, the Government believe that any change to the law in this area is an issue of individual conscience and, of course, a matter for Parliament to decide. We have been reminded of the debate that we held as recently as 7 July, when, on a free vote, the House came to a view.
The House has great respect for the noble Lord, Lord Alderdice, and for all those who have contributed to this debate on whichever side. Our firm view remains that the Coroners and Justice Bill has never been, and is not now the appropriate vehicle for change in the criminal law as it applies to assisted suicide. The provisions in Clause 53 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 aid clarity and understanding. Conduct that is illegal now would remain illegal.
Unlike the amendment that we debated on 7 July, this amendment seems to tackle the issue of assisted dying head-on, by making it legal in limited circumstances to assist the suicide of a person who is suffering from a confirmed, incurable and disabling illness. The House has debated around this issue on a number of occasions, most notably in the context of Private Members’ Bills introduced by my noble friend Lord Joffe. His second Bill was considered at some length by a Select Committee—some of whose members may be in the House tonight—chaired by the noble and learned Lord, Lord Mackay of Clashfern, which reported in April 2005. That committee did not take a position either way on the central issue, but it made a number of recommendations with regard to any future Bills that are relevant.
The moral and ethical issues raised by this amendment have been well rehearsed. I simply remind the House that, whatever the moral arguments, any Government are duty-bound to ensure that amendments to the criminal law are fit for purpose. It therefore falls to me to set out some of the difficulties with the amendments as drafted. These points pick up many of the themes that the Select Committee, chaired by the noble and learned Lord, Lord Mackay, identified. The amendment does not limit the rendering of assistance with suicide to doctors or address significant implications that legislation in this area would have for healthcare professionals. Nor, unlike the amendment debated in July, does it address the crucial issue of mental capacity. It refers to,
“confirmed, incurable and disabling illness”,
which potentially goes much wider than terminal illness, but it does not define those terms.
We have already had the discussion on whether the coronial system and coroners are in any way appropriate. To be fair to the noble Lord, Lord Alderdice, he suggested in his opening remarks that that might not be so. I certainly get the impression, although I may be wrong, that the noble Lord has raised this issue, whether appropriately or not, late at night on Report, to have a discussion around it. He made it clear, and I was very pleased to hear it for a number of reasons, that he does not intend to press his amendment this evening.
Some members of the Government go one way on this issue, and others go the other way, and there is nothing wrong in that. The amendment arguably raises more questions than it answers. Any proposal to change the law would properly require detailed and careful scrutiny by both Houses of Parliament. This Bill is not the place for that.
My Lords, I am grateful to all noble Lords who have participated in this debate, perhaps particularly to the Minister for pointing out the purpose behind what I am doing, and for drawing some attention to a number of the points that I made in my introduction, which were studiously ignored by a number of colleagues because of a degree of discomfort about the whole business.
I am used to dealing with people who have decided for the moment that they wish to bring their lives to an end. Before I left Belfast to come here today, I dealt with two such situations and, when I return tomorrow morning, I will be dealing with some more. It is a constant issue for me, and in making the judgment on whether it is free and settled will, which in the vast majority of cases it is not, hugely significant efforts must be made over periods of years to try to protect people from bringing their lives to a close when it is clearly a function of mental illness rather than of free and settled will. But I can appreciate that that is not the experience of many noble Lords—in many ways, these are rather more academic than political matters. But I make it clear that this is for that minority of people who do want to take such a course. The suggestion that somehow or other I do not understand that that, properly, is the desirable, alternative course for the majority of people is not really a fair listening to what I have said.
One can easily strike debating points. There was the issue about whether I could name a particular physician who had been opposed to chloroform. Well, as it happens, it was brought to my attention subsequently that one of the fiercest critics of Sir James Simpson, who developed the use of chloroform, was a professional colleague of the noble Lord, Lord McColl—the American surgeon, Henry Jacob Bigelow.
Let us not pretend that there are not people to whom this applies, even if it is a minority. Medical practitioners, politicians, theologians and others have not always got it right in terms of how the future judges their judgments about morality. This is not about putting disabled people in a bad place, but it faces the reality that they often find themselves in a bad place. Caring for that is not some academic issue, but a painful and difficult emotional issue with which we must find a way of struggling.
It is clear that the House is not at this point in a position to offer me any guidance as to how things might be taken forward in such a way that this small minority of people might have their concerns held, just as for the majority of people their concerns are being addressed. Despite the comments about the coroners, I still take the view that some judicial figure is more appropriate than a medical, theological or, perish the thought, political figure to make judgments of this sort. With that, and with appreciation of those who have struggled with these questions and continue to do so, I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
66A: Before Clause 64, insert the following new Clause—
“Genocide, crimes against humanity and war crimes
(1) The International Criminal Court Act 2001 is amended as follows.
(2) In sections 53 and 60 (trial and punishment of main offences), after subsection (6) add—
“(7) Subsections (5) and (6) are subject to section 65B (restriction of penalties in relation to retrospective application of certain offences).”
(3) After section 65 insert—
“65A Retrospective application of certain offences
(1) Sections 51 and 58 apply to acts committed on or after 1 January 1991.
(2) But those sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law.
(3) Section 52 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of England and Wales but for this section.
(4) Section 59 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of Northern Ireland but for this section.
(5) Any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence—
(a) applies to conduct in which a person engaged on or after 1 January 1991, and(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.(6) But sections 52 and 59, and any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence, do not apply to—
(a) conduct in which the person engaged before 1 September 2001, or(b) conduct in which the person engaged on or after that date which was ancillary to an act or conduct which—(i) was committed or engaged in before that date, and(ii) would not constitute a relevant Part 5 offence, or fall within section 52(2) or 59(2), but for this section,unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law.(7) Section 65, so far as it has effect in relation to relevant Part 5 offences—
(a) applies to failures to exercise control of the kind mentioned in section 65(2) or (3) which occurred on or after 1 January 1991, and(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.(8) But section 65, so far as it has effect in relation to relevant Part 5 offences, does not apply to a failure to exercise control of the kind mentioned in section 65(2) or (3) which occurred before 1 September 2001 unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law.
(9) In this section “relevant Part 5 offence” means an offence under section 51, 52, 58 or 59 or an offence ancillary to such an offence.
65B Modification of penalties: provision supplemental to section 65A
(1) In the case of a pre-existing E&W offence committed before 1 September 2001, in section 53(6) “30 years” is to be read as “14 years”.
(2) In the case of an offence of the kind mentioned in section 55(1)(d) which is ancillary to a pre-existing E&W offence committed before 1 September 2001, nothing in section 53(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act 1967.
(3) In the case of a pre-existing NI offence committed before 1 September 2001, in section 60(6) “30 years” is to be read as “14 years”.
(4) In the case of an offence of the kind mentioned in section 62(1)(d) which is ancillary to a pre-existing NI offence committed before 1 September 2001, nothing in section 60(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act (Northern Ireland) 1967.
(5) In this section—
“pre-existing E&W offence” means—
(a) an offence under section 51 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;(b) an offence under section 51 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);(c) an offence of a kind mentioned in section 55(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above;“pre-existing NI offence” means—
(a) an offence under section 58 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;(b) an offence under section 58 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);(c) an offence of a kind mentioned in section 62(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above.”(4) After section 67 insert—
“67A Supplemental provision about UK residents
(1) To the extent that it would not otherwise be the case, the following individuals are to be treated for the purposes of this Part as being resident in the United Kingdom—
(a) an individual who has indefinite leave to remain in the United Kingdom;(b) any other individual who has made an application for such leave (whether or not it has been determined) and who is in the United Kingdom;(c) an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom;(d) an individual who has made an asylum claim, or a human rights claim, which has been granted;(e) any other individual who has made an asylum claim or human rights claim (whether or not the claim has been determined) and who is in the United Kingdom;(f) an individual named in an application for indefinite leave to remain, an asylum claim or a human rights claim as a dependant of the individual making the application or claim if—(i) the application or claim has been granted, or(ii) the named individual is in the United Kingdom (whether or not the application or claim has been determined);(g) an individual who would be liable to removal or deportation from the United Kingdom but cannot be removed or deported because of section 6 of the Human Rights Act 1998 or for practical reasons; (h) an individual—(i) against whom a decision to make a deportation order under section 5(1) of the Immigration Act 1971 by virtue of section 3(5)(a) of that Act (deportation conducive to the public good) has been made, (ii) who has appealed against the decision to make the order (whether or not the appeal has been determined), and(iii) who is in the United Kingdom;(i) an individual who is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 or who is liable to removal under section 10 of the Immigration and Asylum Act 1999;(j) an individual who is detained in lawful custody in the United Kingdom.(2) When determining for the purposes of this Part whether any other individual is resident in the United Kingdom regard is to be had to all relevant considerations including—
(a) the periods during which the individual has been or intends to be in the United Kingdom,(b) the purposes for which the individual is, has been or intends to be in the United Kingdom,(c) whether the individual has family or other connections to the United Kingdom and the nature of those connections, and(d) whether the individual has an interest in residential property located in the United Kingdom.(3) In this section—
“asylum claim” means—
(a) a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom, or(b) a claim that the claimant would face a real risk of serious harm if removed from the United Kingdom;“Convention rights” means the rights identified as Convention rights by section 1 of the Human Rights Act 1998;
“detained in lawful custody” means—
(a) detained in pursuance of a sentence of imprisonment, detention or custody for life or a detention and training order,(b) remanded in or committed to custody by an order of a court,(c) detained pursuant to an order under section 2 of the Colonial Prisoners Removal Act 1884 or a warrant under section 1 or 4A of the Repatriation of Prisoners Act 1984,(d) detained under Part 3 of the Mental Health Act 1983 or by virtue of an order under section 5 of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14 of the Criminal Appeal Act 1968 (hospital orders, etc),(e) detained by virtue of an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (other than an order under section 60C) or a hospital direction under section 59A of that Act, and includes detention by virtue of the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to which a person is subject by virtue of an order under section 59 of the Criminal Procedure (Scotland) Act 1995, or(f) detained under Part 3 of the Mental Health (Northern Ireland) Order 1986 or by virtue of an order under section 11 or 13(5A) of the Criminal Appeal (Northern Ireland) Act 1980;“human rights claim” means a claim that to remove the claimant from, or to require the claimant to leave, the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with the person’s Convention rights;
“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention;
“serious harm” has the meaning given by article 15 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted;
and a reference to having leave to enter or remain in the United Kingdom is to be construed in accordance with the Immigration Act 1971. (4) This section applies in relation to any offence under this Part (whether committed before or after the coming into force of this section).””
Amendment 66A agreed.
Further consideration on Report adjourned.
House adjourned at 10.43 pm.