Coroners and Justice Bill

My Lords, this has by and large been a constructive debate and I thank all noble Lords who have taken part. It has been a debate of real quality and I thank noble Lords for giving up their time. I also welcome the broad measure of support from all sides of the House for a number of the individual provisions in the Bill. The poor Bill itself has suffered a bit. It has been described in various ways today: as a dog’s breakfast, a ragbag, a Christmas tree, as elephantine, as a whole series of Bills and as a myriad mix—and those were only the nice phrases about it. I most liked the description by, I think, the noble Lord, Lord Elystan-Morgan, who said it was "compendious". I am not quite sure I understand what that means, but I like the sound of it. I am pleased, too, that the need to change the law on coroners has been largely accepted. It is something that has long been wanted. We need to give the system a new lease of life, give bereaved families a stronger voice, and provide a more effective, transparent and responsive service generally. I apologise to the noble Lord, Lord Henley, for making my opening speech much too short for his liking; I shall try to make up for it now if I possibly can. But I should gently remind him, when he criticises us for introducing too many Bills, of some interesting figures. Between May 1997 and May 2007, 56 pieces of Home Office legislation were passed. It might be said that that number is far too many, but it compares with 68 Acts in the period between 1990 and 1997, including 19 Bills in the pre-election Session of 1996-97. Perhaps the noble Lord has some experience of what he speaks and I have to listen to what he says. It is not surprising with such a wide-ranging Bill that a number of noble Lords have taken severe issue with some of the content. Even where there is general support, noble Lords quite properly want to probe the detail. I welcome that and look forward, not with completely unmixed views, to a detailed scrutiny of the Bill in Committee. I agree with the noble Lord, Lord Henley, that we will be here for a long time, but we will get through the Bill. A large number of points have been made and I have a limited time in which to speak, so I shall do my best to answer as many questions as I can. Before I indulge in that, the noble Lord, Lord Goodlad, referred to the report of his committee, the Constitution Committee of this House. It was published only last week. We welcome the committee’s contribution to the debate on the provisions in respect of certified coroners’ investigations and assessment notices. We are studying the findings and will respond as quickly as we can. I now move straight to Part 1 on coroners. Many noble Lords have welcomed the decision to withdraw Clauses 11 and 12, although I must say that I agree with my noble friend Lady Dean when she said that she was at the same time a little sorry. No doubt noble Lords were looking forward to quite a bit of fun on those clauses, which dealt with the need to protect sensitive material that may be relevant to a coroner’s investigation. As I made clear in my opening speech and others have reminded me, if I ever were to forget, although we are withdrawing the clauses, the issue has not gone away. The noble Lord, Lord Pannick, suggested that rather than establishing an inquiry under the Inquiries Act, we should lift the bar on the admissibility of intercept evidence. I should make the position clear on the Inquiries Act, although no doubt we will debate the issue in some detail. I said that we would consider using the Act in the rare cases where these matters arise, but in all of them, rare as they may be, we will, if possible, try to work under the existing system. That is our first preference. The noble Lord, Lord Kingsland, made a series of points about coroners and asked whether the Government will bring forward an amendment to constrain the ambit of an inquiry established to investigate the circumstances of a death. Our immediate response is to say no, we do not believe that an amendment is necessary. The terms of reference of the inquiry itself under the Act will limit the inquiry accordingly. He mentioned the duty of care in the "Marchioness" case. Clause 34 enables the Chancellor to issue statutory guidance setting out how the coroner system will operate for those who come to use it. It is intended that a charter for the bereaved will be the very first guidance issued, and a copy was published with this Bill. It sets out in detail the standards of service the bereaved can expect and clarify how they can challenge coroners’ decisions. The noble Lord also asked about the budget of the Chief Coroner. He or she will have a budget, be supported by one or more deputies, and have an office with staff. Again, he or she will be funded to administer a new appeals system, administer training for coroners and their staff, introduce standards and best practice, and introduce the charter for the bereaved. As to the important point of legal aid, raised first by the noble Lord, Lord Thomas of Gresford, and mentioned by the noble Baronesses, Lady Miller and Lady Fookes, our case is that the purpose of an inquest is actually to establish the facts. They are not adversarial proceedings in the same way as a trial, with a prosecution and defence, and coroners have ensured and will continue to ensure that the process is thorough and impartial. They are under a duty to assist families and ensure that their questions are answered. We are not persuaded that legal aid needs to be routinely made available for coroners’ inquests. The ministry has provided legal aid in every inquest into the deaths of service personnel where the Legal Services Commission has recommended it, and I understand that it recommended it in every case where it has been sought. Since January 2003 it has been granted in 16 such inquests. However, legal aid is not currently available as a matter of course in other inquests and, as the Legal Aid Minister, with a very, very tight budget indeed, frankly I cannot see that changing in the immediate future. The noble Baronesses, Lady Williams and Lady Finlay, asked about death certification and the independence of medical examiners. Of course it is vital that the public are confident that medical examiners will carry out an independent scrutiny of a medical certificate of the cause of the death. The Bill attempts to ensure this independence in two ways: first, by specifying that PCTs in England and local health boards in Wales can have no role in relation to the way in which medical examiners exercise their professional judgements as medical practitioners; and, secondly, by enabling regulations to specify what is required to demonstrate independence. We think that two protocols will be required. A national protocol—prepared in consultation with the medical royal colleges, the BMA and others—will set standards on the minimal level of scrutiny for medical examiners. A second local protocol agreed by the PCT in consultation with the area’s senior coroner will set out the minimum distance—including any relationships with the deceased or the attending doctor—between the medical examiner and the dead. Our approach will ensure, we hope, that medical examiners are both properly independent and able to influence clinical governance arrangements where necessary. There were many other questions on coroners—one in particular was raised by the noble Lords, Lord Imbert and Lord Ramsbotham. Their complaint was about why we had not established a national coroner service. We considered very carefully whether a national coroners’ organisation should be established, but we concluded that retraining and local ownership, while creating national leadership, was the best model. We think this package of reforms will ensure that the service provided by coroners will be more consistent through standards set by the Chief Coroner. We also believe that measures in the Bill will reduce coroners’ workload and will therefore release resources so they can be directed on providing services to the bereaved. At the same time we think it important to keep the service as a local one, ensuring it can remain responsive to the needs of local people. Moving on, I want to say a word about military inquests. The noble and gallant Lord, Lord Craig, the noble Baroness, Lady Fookes, and others were concerned about the Bill not providing for a specialist military coroner. I reassure them that despite this the Bill will ensure that the current expertise in military inquests will be retained and built on. First, the new Chief Coroner will issue guidance and set standards in relation to certain types of death. The draft charter for the bereaved states that we would expect that to include standards in relation to deaths on active service, and the guidance will ensure that all coroners are well equipped to investigate military deaths. If a particularly complex case arose that required specific skills or experience, the Chief Coroner would be able to transfer that case to the best qualified coroner. Greater flexibility in the new system should also, we think, minimise the backlogs that may occur at present and enable a case to be transferred to a coroner area nearer to a bereaved family than the place to which the body was repatriated. This will significantly benefit bereaved service families. My noble friend Lady Dean, I think, was concerned about this point, as well as others. The noble and gallant Lord, Lord Craig, asked when the Secretary of State would think it appropriate for a death to be investigated in Scotland. If the deceased is a member of the Regular or Reserve Forces who is on active service overseas or preparing or training for it or is a civilian subject to service discipline accompanying such a person, and the deceased’s family lives in Scotland, that is when it will be appropriate. At present, a death in these circumstances will be subject to an inquest, but if an investigation is able to take place in Scotland instead of an inquest it will obviously have beneficial effects, in that the deceased’s family will not have to travel to England. Will medical examiners have specific qualifications? Will the Chief Coroner have a medical adviser? These questions were mentioned by various noble Lords, such as my noble friend Lord Turnberg and the noble Lord, Lord Alderdice. A detailed training curriculum has been developed by an intercollegiate group established by the Academy of Medical Royal Colleges, led by the Royal College of Pathologists, about which a particular question was asked. Medical practitioners will be assessed following completion of the training and, if successful, accredited to act as medical examiners. Practice as a medical examiner will also be reflected by the arrangements for the revalidation and relicensing of medical practitioners when introduced by the General Medical Council. Medical support to the Chief Coroner will be provided by a national medical adviser. He or she will advise and provide leadership on all medically related matters. I think that answers that question. The Bill allows coroners to request an MRI scan as a non-invasive post mortem. Research is continuing, but there are issues about cost and the availability of equipment. I shall move rapidly on to Part 2, which deals with homicide. I heard clearly the points made by the noble and learned Lord, Lord Lloyd of Berwick, on this issue; he queried our staged approach to the reform of the law of murder, as did other noble Lords. The Law Commission’s recommendations for this important and sensitive area are indeed ambitious and wide-ranging, but we think it is better to stage our reforms to get them right. We will be looking in due course at the commission’s other recommendations, particularly those for a new structure for homicide and complicity to murder, in the light of the effect of changes to the partial defences. I need to make it clear to the noble and learned Lord that the murder provisions in the Bill were debated in Commons Committee but, unfortunately, not on Commons Report. We will undoubtedly refer to the partial defences in due course. I hope the House will forgive me if I quote some outsiders who seem, at least from the terms of these quotations, to be in favour of what we are attempting to do. On the question of provocation, the organisation Liberty, which is not often known for its support of what the Government intend to do, said this: ""With respect to the first of these"—" that is, killing in response to the fear of serious violence— ""Liberty welcomes the proposal as a reasonable response to some of the current problems arising under the provocation response"." That was in October last year. The Law Commission itself said in the document Murder, Manslaughter and Infanticide in November 2006, after the important House of Lords decision that the noble and learned Lord referred to, which I think is called Holley, that, ""the partial defences remain misleading, out-of-date, unfit for purpose or all of these"." So there are various views, but I know that the noble and learned Lord’s view and that of the noble and learned Lord, Lord Mayhew, is that we should be doing all this as one; I understand that. I turn to provocation and the issues around sexual infidelity. The fact that the thing done or said constituted sexual infidelity is to be disregarded by the Bill. However, it may be taken into account in so far as it also amounts to something other than sexual infidelity. We will come back to these issues in due course. The noble Lord, Lord Joffe, asked me why we are not using reform of partial defence and diminished responsibility as an opportunity to update the law relating to mercy killers. The Law Commission, in its report, made clear its view that the use of the defence of diminished responsibility should not be stretched so far that it becomes a back-door route to a partial excuse for caring but rational mercy killers. We agree with that position. I come to Clause 61, which is, of course, a matter we will debate in full, and no doubt vote on. I think I am entitled to point to the fact that the House of Commons has voted twice by huge majorities in favour of what we are proposing in this Bill. That is something that, at least, this House has to take notice of, even if it decides to continue the attitude it took last year. I do not think there is any constitutional outrage at all in coming back this year with a proposition we had last year. It is quite clear why we did not come back to this House on it last year. The noble Lord will argue his case, no doubt with great passion as he did last year, but this matter should be decided on the issue itself. It is not a constitutional issue as such. As far as the Sentencing Council is concerned, some very interesting comments were made. I am very grateful for the great support shown to it, and I think that is a fair adjective, by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, whose speech—if I may say so—was outstanding, in the course of a pretty outstanding debate. Their support is much appreciated. I know their concerns about this, which were expressed very clearly by the noble Lord, Lord Elystan-Morgan. Though I often agree with him, I think that on this occasion, he was slightly exaggerating the dangers involved. The Bill makes clear that the court must follow the guidelines laid down by the Sentencing Council unless the court is satisfied that it would be contrary to the interests of justice to do so. That is stronger than the present duty on sentences, which is simply to have regard to guidelines. However, that enhanced duty is based on the Gage Commission’s view that there should be a presumption that guidelines drawn up by a body with a judicial majority and chair should be applied to ensure greater consistency in sentencing. We recognise, of course, as did the working group, that there has to be discretion to do justice in the individual case. That is why the Bill provides that, even where an offence is sub-divided into categories, the sentencer can sentence within the entire range of the guidelines. That means that, in the Sentencing Guidelines Council’s current robbery guidelines, the sentence can be from one to 12 years; and even then, the sentencer can still depart from the offence range if it is in the interests of justice to do so. "In the interests of justice" is a very important expression. Again, we will debate sentencing views in due course. The noble Baroness, Lady Stern, asked me how many new offences this Bill created. I am glad to be able to tell her that it creates 15 new offences. Eight are wholly new, and the remaining seven update offences in the Coroners Act 1988. We will have a debate about the number of imprisonable offences that have been invented, as she argued, by this Government. I think that even she would agree that some of those, in some of the fields where we have changed the law, were undoubtedly right and proper to create. Many noble Lords spoke about genocide, war crimes and crimes against humanity—all of them were in favour of movement on this issue. We know that the noble Lord, Lord Carlile, intends to table an amendment in Committee to make the offences of genocide, war crimes and crimes against humanity retrospective. We remain keen to ensure that no one escapes justice for crimes as devastating as those in question, so graphically described by noble Lords, particularly the noble, Lord Alton. The International Criminal Court Act 2001 already allows for UK residents or nationals to be prosecuted here for such crimes irrespective of where they were committed, but this does not apply to offences committed prior to 2001. As my right honourable friend the Lord Chancellor said in another place, we are actively considering this issue, and I have no doubt that we shall have an interesting debate in Committee on this very important area of concern. We heard many passionate speeches on assisted suicide, either for a change in the law or for maintaining the law as it is. I was asked whether there would be a free vote on the Government’s side. The answer is yes. There will be a free vote on an amendment of the kind that my noble friend Lady Jay proposed. However, I must repeat the observation that I made many hours ago in my opening speech; namely, that we do not think this Bill is the appropriate vehicle in which to pursue a change in the law on this sensitive issue. Nevertheless, I look forward to listening to the debates in Committee. We heard some interesting speeches on criminal memoirs. I think there will be interesting debates on that, too. I make it clear that this is not an attack on freedom of speech or on legitimate publishing businesses. We are not banning criminals from writing about their acts, no matter how ghastly they may have been. We are just saying that if a criminal publishes material about his crimes or an act that can cause distress to victims and their families, the court will have the power—if it wants to use it—to order any benefit derived from the publication to be repaid. I emphasise that the courts will have a wide discretion on whether to impose an order. The noble Lord, Lord Lester, was delighted with what we had done with regard to conditional fee agreements. We are also pleased as we think that it is the right course and that it will be popular. I noted what the noble Lord said about sedition. This issue arose in the other place. We accept that there is a case for the abolition of these rarely used offences. We need to be confident that they can be abolished without further ado. It is open to the noble Lord to table a suitable amendment for Committee which would allow noble Lords an opportunity to debate the issue. I assure him that the Government would welcome such a debate, but I say no more about it tonight. Indeed, I say no more about anything tonight. I have gone on for longer than I meant to. Once again, I thank all noble Lords for the part they have played in a most illuminating and interesting debate and look forward to seeing them in Committee.