Coroners and Justice Bill

So here we are again, my Lords. A sensible reform of the criminal law would be to take a single topic, to carry out research and, after full consultation, to deal with that topic comprehensively but concisely in a single Bill which would pass through Parliament after proper debate and scrutiny by both Houses. It appears from what the Minister has said this afternoon that this will happen on the issue of assisted dying but not on the law of murder—which one would have thought had much wider implications for the public of this country. It does not happen, of course. I called the last criminal justice Bill, last year, a ragbag. This Bill, to adopt the word of the noble Lord, Lord Kingsland, is a miscellany of no fewer than 15 discrete and complex topics that have been thrown together. Important issues were crowded out in the other place, and at this stage it is quite impossible for me to cover even a majority of the issues that arise. I am, however, supported by my noble friends on these Benches, who will themselves deal with discrete matters. It is a constitutional scandal that the Government's proposals for the reform of the law of murder to which I referred a moment ago—regarded as deeply flawed and unworkable by all those who have practical experience of the criminal law: judges, barristers, solicitors and academics as well—were never reached on the Floor of the House of Commons. Two days were allocated there for Report and Third Reading, and on the first of those days government last-minute business ensured that debate did not start until 6 pm in the evening, so that the proposals about murder were never debated on the Floor of the House. We refer to the process whereby amendments are passed by this House, rejected by the other and returned to us for further consideration as ping-pong—or, as Boris Johnson would call it, whiff-whaff. This language of the playroom may enable the Government to play down the significance of the constitutional anomaly that has now been reached whereby the elected House has ceased to debate a Bill in full at all. We can apply that to all the Bills that come before your Lordships' House. In the field of law reform, there have been two conflicting strands in the Labour Government over the past 12 years. The enlightened strand comprised those who realised the real importance to the people of this country of emphasising and enforcing their individual human rights and who have taken the trouble to draw clear lines between the judiciary, the Executive and the legislature. I give as examples the Human Rights Act, the creation of the Supreme Court and the appointment of judges by an independent Judicial Appointments Commission. However, in more recent years another tendency has taken control of the Government. Perhaps in the light of rebuffs to defective legislation in the courts, that tendency does not trust the judiciary and seeks to limit and to confine the role and discretion of the judge—as the noble Lord, Lord Kingsland, said a moment ago, to turn the judge into a civil servant. You will recall, for example, the Government’s argument in 2004, in the case of the nine foreign detainees held under the Terrorism Act in Belmarsh prison without trial, that the judicial decision-making was undemocratic. The noble and learned Lord, Lord Bingham, giving the lead judgment of the Judicial Committee on which, exceptionally, nine Law Lords sat, said the following, which we should have in the front of our minds: ""It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true … that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic"." It is right, when we approach another Bill of this type, to emphasise that the independence and integrity of the judiciary, and of the legal profession on which the judiciary depends and from whose ranks it is constantly renewed, are vital pillars of democracy. It is no coincidence that in states where the lawyers and judges are attacked until they become tools of the Executive, democracy does not flourish. I suspect that the people of this country would not want judges swept away from the Bench and replaced by elected politicians; nor, to recall earlier defeated government proposals, that ordinary juries should be replaced in complex fraud cases by expert juries of investment bankers or other City operators. That is what came before us and that is what this House rejected. I hope to demonstrate the relevance of those observations in considering some of the Bill’s provisions. I start briefly with sentencing—my noble friend Lady Linklater of Butterstone will be winding up on this topic. It is important to consider what is proposed in the Bill and to see that there is an attempt in Clause 107, in particular, to confine, cabin and crib the decisions of judges in sentencing matters. The Minister said that the Bill is not about restricting judges, that we do not have grid lines and that there is supposed to be flexibility. The Sentencing Council could be a very positive thing. It could do a great deal of good in educating the public. My noble friend will expand on those ideas in due course. However, it is an example of how the Government’s tendency to try to cut down the role of judges is made obvious. I turn to Part 1, concerning coroners. I declare an interest in that in my early years as a solicitor, my senior partner was the coroner for Denbighshire and had presided over the largest inquest that this country has seen—the inquest into the deaths of about 280 miners in the Gresford Colliery disaster of 1934—so I was aware early in my career of the significance of coroners and the important role that they play. There have been all sorts of reports about coroners. There have been draft Bills, pre-legislative scrutiny, changes announced and a draft charter for bereaved people. You would think that there was enough meat for a discrete Bill on coroners alone, which could be properly discussed and scrutinised in both Houses. The greatest controversy has so far been over Clauses 11 and 12. Of course, last Friday, as we have heard, the Lord Chancellor withdrew those provisions. However, timeo Danaos et dona ferentes: the Lord Chancellor’s statement envisages that the Government will instead consider, in undefined cases, establishing an inquiry under the Inquiries Act 2005. I adopt the reservations that the noble Lord, Lord Kingsland, expressed on this topic a moment ago. Worse than that, Section 19 of that Act permits a Minister to issue a restriction notice to the chairman of an inquiry to restrict disclosure or publication of any evidence—or documents given, produced or provided to the inquiry—on the grounds of public interest. That public interest is defined in the Inquiries Act in far broader terms than in the provisions that the Lord Chancellor is now dropping, including, for example, damage to the economic interest of this country—such as the arms trade, shall we say? It would give power to the Minister, by the restriction order under the Inquiries Act, to exclude the family from the hearings. My noble friend Lady Miller of Chilthorne Domer will say more on this topic in due course. The Government often declare their determination to put the victim first. Where death has occurred in extraordinary circumstances, the family of the deceased are the victims. The noble Lord said a moment ago that they deserve the best possible services. I hope that will include a right to legal aid for the family, because at the moment it is refused. There are undoubtedly many inquests that a coroner is perfectly capable of conducting on his own without legal representation from any quarter, but where an interested party—be it a factory owner, the police, the Prison Service or the military—instructs solicitors and counsel to protect its own interests, surely there should be a clear right for the family to have legal aid. Very often, in factory accidents, police shootings, prison cell deaths and military deaths, there are significant parties whose interests are to minimise or contest the cause of death. The family deserves to be represented. I give an example. In April 2007, two colour sergeants, including Mark McLaren, aged 27, were crushed to death under a Puma helicopter. The landing of five helicopters in the hours of darkness north of Baghdad was botched, and two of them collided. Mark’s family was told that legal aid was not available for representation at the inquest, although the Ministry of Defence had instructed counsel. I am pleased to say that the noble Lord, Lord Bach, listened to representations from me. Following representations, a special procedure was employed, which gives the Legal Services Commission discretion to grant legal aid. After much worry and form-filling, the family was indeed granted legal aid as a matter of discretion. At the inquest last December the coroner heard that Sergeant McLaren had been fastened in by a harness that was defective and should have been replaced. Several soldiers and RAF personnel gave evidence anonymously from behind a blue curtain to the effect that the blades of the helicopters had not clashed and that this was all wrong. They were cross-examined on behalf of the family by an experienced solicitor-advocate. The coroner rejected the anonymous evidence and concluded that Sergeant McLaren would not have been thrown out of the helicopter if he had been provided with the correct equipment. The coroner made recommendations to the Armed Forces Minister on this and on four other important safety issues, but the sting in the tale is that the cost of the families’ representation will be deducted from any compensation that the family may subsequently receive. Of course, the taxpayer will pay the Ministry of Defence’s costs for instructing counsel at the hearing. We accept many things about coroner reform. It is good to have a single service, but the funding is a different issue, and remaining with local authority funding will not be satisfactory. Part 2 deals with murder, infanticide and suicide. The law on murder is widely agreed to be in a mess. In October 2004, the Home Secretary announced that the Home Office, the Department for Constitutional Affairs and the Attorney-General’s Office would jointly review the law on homicide. The Law Commission carried out the first part of that review, although it was precluded specifically from considering whether the mandatory life sentence should remain. It published a report that completely restructured the law on murder into a three-tier system. The first tier would require proof of an intention to kill or of acting with the knowledge of a serious risk of death, and would carry a mandatory life sentence. The second tier would require proof of an intention to cause serious harm only, and would give the judge the discretion to determine the appropriate sentence. The Law Commission proposed that partial defences of diminished responsibility and provocation would reduce first-tier murder to second-tier murder rather than, as at the moment, to manslaughter. The Government have looked at all this and have proceeded on a pick-and-mix basis. They have rejected the three-tier structure as a whole but have plucked out the Law Commission’s proposals on provocation, diminished responsibility and infanticide. However, the proposals were carefully designed by the Law Commission not to amend the existing law of murder and manslaughter but as part of its proposed three-tier structure. We shall explore in Committee why the Government rejected its proposal that the diminished responsibility partial defence should be available to a child or young person under 18 on the ground of developmental immaturity. A purist situation is now envisaged in which a 40 year-old man can claim diminished responsibility if he has the emotional maturity of a 10 year-old, but a 10 year-old has no defence of diminished responsibility for having that very same lack of maturity. On the partial defence of provocation, we have in this Bill the Law Commission’s mangled proposals and, it appears, from a feminist agenda. First, Clause 44 provides that a loss of control will reduce murder to manslaughter if there is a "qualifying trigger". The loss of control, however, does not have to be sudden or temporary as it does in current law. I do not see how the loss of control can be anything other than sudden, but that is what the Bill says. Another oddity, to which the noble Lord, Lord Kingsland, has referred, is that a thing done or said that constitutes sexual infidelity is to be disregarded. Why should a jury be prevented from considering a loss of control due perhaps to some of the deepest passions that can be aroused, and on the other hand take almost the most trivial thing as provocation so long as it does not involve the concept of sexual infidelity? There is so much more that I could say and I know that I am wearying your Lordships by continuing as long as I am—although I am now getting some encouragement from my left. Are the proposals based on sexual infidelity the result of evidence? The Domestic Violence, Crime and Victims Act 2004 provided, in Section 9, for domestic homicide reviews. That was another compendious Bill, of some 63 clauses and 12 schedules. I cannot find that there has ever been a domestic homicide review. That is another provision in that Act which has not been brought into effect. All these things are put forward—someone has a bright idea in the Home Office to bring it forward, it goes through, there is a solid majority in the other place and nothing happens. That is precisely what has happened with the Commissioner for Victims and Witnesses, which has now been resurrected in this Bill. The provision was passed in 2004 and not at any stage implemented. There are so many other issues here that we will be looking at in due course—witness anonymity, encouraging or assisting suicide, and vulnerable and intimidated witnesses. For the moment, however, I have gone on long enough and I shall allow your Lordships to continue what should be a lengthy and very interesting debate.