Coroners and Justice Bill

Public Bill Committee, 3 March 2009.

Clause 39

Frank Cook (Labour, Stockton North)

I remind the Committee that with this we are taking the following: amendment 18, in clause 39, page 24, line 3, after ‘D’, insert ‘or V’.

Amendment 164, in clause 39, page 24, leave out line 5.

Amendment 400, in clause 39, page 24, line 9, at end insert—

‘(1ZA) A person (“D”) who kills or is party to the killing of another is not to be convicted of murder if D was under the age of eighteen and his developmental immaturity—

(a) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(b) provides an explanation for D’s acts and omissions in doing or being a party to the killing.’.

Amendment 165, in clause 39, page 24, leave out lines 14 to 16.

Amendment 401, in clause 39, page 24, line 14, after ‘(1)(c)’, insert ‘, and subsection (1ZA)(b)’.

Amendment 402, in clause 39, page 24, line 15, after ‘functioning’, insert ‘or D’s developmental immaturity’.

Clause stand part.

Amendment 19, in clause 40, page 24, line 24, after ‘another’, insert ‘(“V”)’.

Amendment 20, in clause 40, page 24, line 25, after ‘D’, insert ‘or V’.

Clause 40 stand part.

David Howarth (Liberal Democrat, Cambridge)

Good morning to you, Mr. Cook, and to the rest of the Committee on what threatens to be a long day. We are discussing the law of murder and whether and to what extent the defence of diminished responsibility should be reformed. The law of murder is not easy to understand. It is a common law crime, with statutory defences. There are fundamental problems with the crime itself without even reaching the defences, which is why the debate is so complex. It would be useful for the Committee to remind itself of what the Law Commission said originally about what we are discussing today. Paragraph 1.8 of its 2006 report states:

“The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they can no longer be stated with any certainty or clarity.”

For the law on the most important serious crime to be in such a state is nothing short of a scandal. The Law Commission goes on to say that under the existing law, the law of murder is both too broad and too narrow, that it catches actions that most ordinary people would think were manslaughter and fails to catch actions that most ordinary people would think were murder but, in fact, legally are manslaughter. I remind the Committee of what the Law Commission said about that. On the category of when the law of murder appears to be broad, paragraph 1.17 of its report states that under the current law the defendant

“is liable for murder not only if he or she kills intentionally but also if he or she kills while intentionally inflicting harm which the jury considers to have been serious. In our view, the result is that the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious, can find themselves placed in the same offence category as the contract or serial killer.”

The Law Commission explains under paragraph 1.24 where the law of murder is too narrow and how people who would generally in public terms be thought to have committed murder end up being convicted of the lesser offence of manslaughter. It states:

“The scope of murder is both too broad and too narrow. Where the scope of murder is too narrow, the scope of manslaughter is correspondingly too broad. In particular, the law is too generous to some who kill by ‘reckless’ conduct, that is those who do not intend to cause serious harm but do realise that their conduct involves an unjustified risk of causing death. The law is too generous in treating all those who realise that their conduct poses a risk of causing death but press on regardless as guilty only of manslaughter.”

That is the starting point for our debate. The Law Commission proposed that the law of murder should be reformed. If we reform first the law of murder and what counts as an offence, we can then start to think about the partial defences that have the effect of turning murder into manslaughter. That is what we should have been doing, but we are not doing that at all. We are simply attempting to reform the defences without reforming the underlying offence.

Another important part of the problem is the mandatory life sentence for murder—the issue that dare not speak its name in this debate. Everyone who practises in the criminal courts knows that the real problem is the scope of the mandatory life sentence. The difference between murder and manslaughter is the difference between a mandatory life sentence and an optional one, which is optional at the choice of the sentencing judge. The Law Commission was tasked by the Government, who told it that it was not allowed to say that there should not be a mandatory life sentence, which is the view of many judges. The Law Commission approached the task by asking what the mandatory life sentence should apply to, and to define that as murder in the first degree. Then it asked whether there are murders or homicides that are not murder in the first degree, and to those it would attach not the mandatory life sentence but the optional life sentence, and they would count as murder in the second degree.

If one did that—murder one, murder two and perhaps murder one, murder two, manslaughter—the defence of diminished responsibility that we are discussing becomes a completely different question. It is not about all the circumstances when one might want the mandatory life sentence not to apply, with an optional life sentence instead. It is only about specific circumstances where murder one would be charged, which is a murder that one wants a mandatory life sentence to apply to. In those circumstances, as one has already made a policy decision that those are cases to which the mandatory life sentence should apply, the scope of the diminished responsibility defence—this also applies to the loss of control defence that we will discuss later—ought to be narrow, because it contradicts the underlying polices about what should count as murder one.

Unfortunately, the Government have changed the reformed defences from the Law Commission’s work and have put the narrower versions of the defences into the Bill without having reformed the law of murder itself, and it is arguable that that makes no sense at all. The Government need to come back with a complete reform. When the Committee was taking evidence, I tried to get at the underlying policy reasons. The Government seem to intend that more people be convicted of murder, but they need to answer the question, “Why?” Looking at the particular terms of clause 39, we need to ask the Government precisely what in each case where they are narrowing the defence they intend to achieve by that narrowing.

Diminished responsibility at the moment, before clause 39 reforms it, is not a precise defence. It is deliberately so. Its function is to allow juries to say that people should not be found guilty of murder and should not receive a mandatory life sentence. It speaks of mental abnormality, but a mental abnormality is usually defined by the court as a state of mind different from the ordinary, not as any kind of clinical condition. That mental abnormality has substantially to have impaired the defendant’s mental responsibility. That is all it is—there is no accurate or precise definition of mental responsibility. It is just left at large and the jury gets to decide what it means in particular cases. There is no strict causation requirement—no requirement that the mental abnormality that substantially impaired the defendant’s mental responsibility should, in some clear sense, have caused the homicide. It is left up to the jury to think about the general idea of responsibility.

What does the clause do? First, it adds to the mental abnormality leg of the definition of diminished responsibility that the mental abnormality should arise from a “recognised medical condition”. Secondly, instead of the idea of mental responsibility being a broad question for the jury to decide upon, we get a precise definition of what that might mean, and what it can mean—understanding the nature of the defendant’s conduct, the ability to form a rational judgment, and exercising self-control. It has become much more precise, but what is the point of it? Thirdly, and one of our amendments deals with this specifically, is the addition to the responsibility concept of a precise notion of causation—that there has to have been causation. In other words, the homicide would not have happened if the mental abnormality, which amounts to a recognised medical condition, had not occurred.

Our amendments are intended to test those changes and to ask the Government what is intended by them. First, I shall address the “recognised medical condition”. Broadly, that appears to mean that the defendant has to be suffering from something with the label DSM4 in the diagnostic and statistical manual of the American Psychiatric Association. That is what appears to be intended. Why is that? I do not think psychiatrists, in particular, are calling for this change, which means that they will be in court more often giving expert evidence with regard to particular labels to be added to the defendant’s condition. Why is that necessary?

With regard to the specific list of mental responsibility—understanding the nature of the conduct, forming a rational judgment and exercising self-control—what is the purpose of that extra specificity? What if there is some other way in which the person should not count as mentally responsible? In particular, there is the issue of mercy killings, which the hon. and learned Member for Harborough raised at our last meeting. If one forms a rational judgment, the paradoxical effect is that the more rational it would appear to carry out such a killing, the less likely one is to qualify for the defence. That appears to be the opposite of the current position. Is the Government’s intention to try to ensure that in mercy killing cases, such issues are taken away from the jury, which is instructed through the legal case to find mercy killers guilty of murder rather than manslaughter? At the moment it is rare in a mercy killing case for the verdict to be murder rather than manslaughter.

Finally, I turn to the causation issue. People who represent psychiatrists object to the extra specificity because they say that they cannot tell whether a particular condition caused a particular thing to happen, and they cannot give evidence in court to that effect. They can talk about people’s mental processes, their attitudes and what was happening in general inside that person’s head, but they cannot talk about it in the specific terms that seem to be required by clause 39. Why, against expert advice in the legal and medical professions, has the extra specificity been added?

With one exception, I do not want specifically to comment on the Conservative amendments, which raise important issues that I am sure that the Minister will address. Certain drafting problems have been raised, but the point of the amendments is not them but policy questions. However, I would like to put on the record my support for Conservative amendments 400 to 402 about developmental immaturity.

The drafting of the clause raises an anomaly. An addict, who in a sense lives with a developmental immaturity problem—in layman’s terms, although they are inaccurate, that person might have a chronological age of 40 but a mental age of 10—would have that condition taken into account, because it is a recognised medical condition. The trial would continue on the basis that there was a recognised medical condition. However, a child is only covered in the same way. A child of, say, 14 only has as a defence that their developmental condition is such that their mental age—again using the lay term—is less than 14. If they were 10, the age of criminal responsibility, their mental age would have to be less than 10.

The anomaly involves children who are 10 and who have the maturity of a 10-year-old. An adult who acts like a 10-year-old gets that taken into account, but a 10-year-old who acts like a 10-year-old does not. As I understand it, the intention of the amendments is to correct that point and to give children the benefit of being children, without having to say that they are immature for their age.

Returning to the mandatory life sentence, the Law Commission says that the current law is a sort of “benign conspiracy”. That was confirmed in the evidence session, in which the Director of Public Prosecutions said that he could not see, technically, even under the existing law, how in a lot of cases a jury wanting to show mercy to a defendant could count the offence as manslaughter rather than murder. Quite a lot of jury nullification is going on, by which juries apply not the technical words of the law but their own moral standards. I like that; it goes to the heart of the common law and is how our system should work. In the end, no law should be enforced in this country if 12 ordinary people cannot be persuaded to apply it—the ultimate democratic test of any law. What follows is, simply, that the same thing will happen to clause 39—no matter what the Government try to put in the clause, juries will still have their way with the law.

Maria Eagle (Labour, Liverpool, Garston)

Is it the position of the hon. Gentleman’s party that the mandatory life sentence should be abolished?

David Howarth (Liberal Democrat, Cambridge)

My position is the same as the Law Commission’s, that what we should do is to say where the mandatory life sentence should apply, which is in a narrow range of cases—although in some instances, the Law Commission pointed out that there are some anomalies where it should, but does not, apply now. We start with what we want to define as murder, which gives us the scope of the mandatory life sentence. I would be happy then to have very narrow defences, as under the Bill, because if we have a mandatory life sentence, we should not allow pathways out of it—we have decided that it is mandatory—but then the rest should consist of optional sentences for murder two and manslaughter. I prefer to do that through definitions of offences rather than using slippery defences, as under the Bill.

Returning to the point that I was making, juries will have their way with such defences anyway. If the Government went too far in trying to narrow the defences, all that would happen is that in reality—though not in the world of law—we would have something like the French system; in France, there is a general rule that extenuating circumstances, as found by the jury, remove the mandatory life sentence. Returning to the Minister’s comments, it might well be, after a number of years of trying to renew a set of definitions, that we come to the conclusion that the best thing that we can do is keep up with reality itself and move to something like the French system.

Maria Eagle (Labour, Liverpool, Garston)

It is a pleasure to be back in Committee this morning—as the hon. Member for Cambridge has said, we may be here for some time. Given that the clause stand part debate is included in the group of amendments, I shall begin by talking about clauses 39 and 40, which we are debating the stand part of, before moving on to deal with the amendments and some of the points that have been made by the hon. and learned Member for Harborough in moving his amendment.

Clause 39, as Members have mentioned, reforms the law on diminished responsibility, which is a partial defence to murder. The hon. Member for Cambridge gave a brief exposition about the Law Commission’s report and his views on it, which has been helpful to the Committee in setting out the wider context of the offence generally, some of the developments that have taken place over the past few years and attempts to look at how to best reform the law—I think everybody admits that the law could do with some reforms.

The partial defence was examined along with other matters in the 2006 report by the Law Commission, called “Murder, Manslaughter and Infanticide”. It concluded that

“The definition of ‘diminished responsibility’ should be modernised, so that it is both clearer and better able to accommodate developments in expert diagnostic practice.”

The Government agree with that view, and the clause is designed to try to do that. It replaces, as the hon. Member for Cambridge has alluded to, the existing definition of the partial defence to murder of diminished responsibility with a new one is based on the concept of an abnormality of the mental functioning arising from a “recognised medical condition” by amending section 2 of the Homicide Act 1957. The existing partial defence defines diminished responsibility, which the hon. Gentleman has made reference to, as:

“such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired [the defendant’s] mental responsibility for [his or her] acts or omissions in doing or being party to the killing.”

The many lawyers in Committee, I think, will remember fondly learning those things at law school—in some cases, rather longer ago than in others. The Law Commission has two main criticisms—[Interruption.] Enough has been said about how long ago it was in my case. The Law Commission has two main criticisms of the partial defence. First, that the defence was not drafted with the needs and practices of medical experts in mind, and secondly that it does not explain what is involved in the substantial impairment of the defendant’s mental responsibility, which is required for it to succeed. Subsection (1) deals with the first criticism; namely, that the definition of diminished responsibility in the Homicide Act 1957 is not consistent with medical practice. The phrase “abnormality of mind” is not a psychiatric term, and the permissible causes as set out in the current definition do not represent current thinking on all causes that could give rise to mental impairment. Its meaning has had to be developed by the courts.

The hon. Member for Cambridge is a big fan of the common law. Common law has enormous advantages but also some disadvantages in the way that it develops. The changes that take regard of the concept of a recognised medical condition are to ensure that we replace the existing definition with one that will not have to be developed through time by common law, but that will keep up with developments in medical practice and understanding of the way in which diseases work.

David Howarth (Liberal Democrat, Cambridge)

This is an important point, because precisely the same point can be made about the law of murder, which is a common-law offence. As the Law Commission has said, it is such a common-law offence that it is difficult to state what it means with any precision. Why do the Government take that view about the defence of diminished responsibility, but do not hold the same view of the offence of murder in the first place?

Maria Eagle (Labour, Liverpool, Garston)

I explained at the time that we responded to the Law Commission’s report and came forward with some of the proposals, which were, of course, consulted on before the production of the Bill. The Law Commission’s proposals were somewhat radical, and they did not command total agreement between all stakeholders and users of the system, whom we must get on board to ensure that the system works and is credible. We were therefore not able to reach agreement that led us to believe that we should go forward with the full panoply of restructuring the offence as well as splitting it up—as set out by the hon. Member for Cambridge—at this time. However, we believed that it was important to proceed with some of the valuable reforms of the partial defences that are in the Bill. There will be a second stage to our considerations about whether to go forward with some of the other proposals in the Law Commission’s report.

All the lawyers, and perhaps others on the Committee, accept that the law sometimes moves in a glacial fashion and does not always speed ahead as fast as the intellectual thought of the Law Commission. We must ensure a general consensus that we are going in the right direction, which was explained at the time of the consultation. We made it clear that we did not intend to go ahead at this stage with the entire proposal for reform, but that reforming the partial defences in this way was a valuable contribution to developments. We undertook to look further at whether the other proposals should be taken forward, in view of experiences arising from the changes, and we are still in that position.

The hon. Gentleman talked about classificatory systems. There are a number of accepted systems that encompass recognised physical, psychiatric and psychological conditions. Foremost among those is the World Health Organisation’s international classification of diseases, ICD10, as well as, as has been said, DSM4, which is the American Psychiatric Association’s diagnostic and statistical manual of mental disorders—please do not test me on that one.

The Government envisage that such accepted classification systems will be used later. If a qualified medical expert gives evidence that, at the time of the killing, a defendant was suffering from a condition included in one of these lists, and the jury accepts that, that part of the test will be met. There is also scope for conditions that are not included in such a list to be deemed recognised medical conditions for the purposes of the test, which addresses one of the concerns alluded to by the hon. Gentleman. Flexibility is important, as it caters for emerging conditions that, while they have not been recognised and put on the classificatory lists, are part way through being recognised and medical people out there are expert at dealing with them. The defence could therefore call a recognised specialist who has had their work peer-reviewed, although it has not quite got on the list. It would then be for the jury to decide whether that met the partial defence requirement.

Subsection (1) provides that a person who kills or who is a party to a killing is not to be convicted of murder if he or she was suffering from an abnormality of mental functioning that arose from a recognised medical condition, which substantially impaired his or her ability to do certain things that are set out under subsection (1)(1A), and which provides an explanation for their acts or omissions in doing things or being a party to the killing. The hon. Member for Cambridge referred to causation. The meaning of the “explanation” is expanded in subsection (1)(1B), which I shall cover when dealing with the amendments.

The Law Commission’s second main criticism of the law is that it refers to the defendant

“suffering from such an abnormality of mind...as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing”.

However, it does not explain what is involved in such a substantial impairment. Subsection (1)(1A) deals with the issue, following the Law Commission’s recommendation, by specifying that the abnormality of mental functioning that has arisen from the recognised medical condition must have substantially impaired the defendant’s ability to do at least one of the following actions: to understand the nature of his or her conduct; to form a rational judgment or to exercise self-control. If that test is not met, the partial defence cannot succeed.

The Government agree with the Law Commission that it is necessary for there to be some causal connection between the abnormality of mental functioning and the killing in order for the partial defence to succeed. It is right for there to be some connection between the condition and the killing, otherwise the partial defence could succeed in cases when the defendant’s mental condition made no difference to their behaviour, and they would have killed regardless of the medical condition. For that reason, subsection (1)(1B) provides that, for the partial defence to succeed, any such abnormality of mental functioning must have been at least a significant contributory factor in causing the defendant to do as he did. It need not have been the only cause, the main cause or the most important factor, but it must be more than merely trivial. The partial defence cannot succeed when the truth is that the recognised medical condition and the impairment were randomly present by coincidence and made absolutely no difference to the behaviour that ensued.

David Howarth (Liberal Democrat, Cambridge)

I do not want to go into the technicalities of causation and the law because that would take me and the whole Committee back to my previous life. I just want to draw attention to the practical problem caused when psychiatrists are called to give evidence but they say that they do not deal with such categories, contributory factors or cause, and deal only with people’s minds. There is a lack of connection between the way in which lawyers think and how psychiatrists think.

Maria Eagle (Labour, Liverpool, Garston)

There certainly will be other evidence of what went on in the individual circumstances of the case before the court, as well as the medical evidence. While we would not necessarily expect the medical expert to be an expert on causation, it would be for the jury in respect of all the evidence it has before it to decide whether it was merely coincidence or whether a cause contributed more or was of some significance and related the behaviour to the medical condition. We would expect the expert to at least be able to say whether the kind of behaviour that was exhibited was the sort that often related to the medical condition that was being discussed. I am sure that the 12 good men, women and true would be able to use their sense in respect of the medical and other evidence before them. Clause 40 extends the provision that we are discussing under clause 39 to Northern Ireland.

Amendments 17 to 20 tabled by the hon. and learned Member for Harborough would extend the partial defence of diminished responsibility in murder cases significantly beyond the scope of current legislation. It would mean, recalling the hon. and learned Gentleman’s speech at our previous sitting, that the defence could be used not when the defendant was suffering an abnormality of mental functioning arising from a recognised mental condition, but when the deceased had been suffering in that way—in other words, the victim, the person who had been killed. The defence would need to show that the defendant’s ability, not that of the dead person, to understand the nature of his conduct, to form a rational judgment or to exercise self-control—or any combination of the three—had been substantially impaired by the deceased’s abnormality of mental functioning, and that the deceased’s abnormality provided an explanation for the killing.

The hon. and learned Gentleman’s remarks set out what he was reaching for, and he accepted that there might be some confusion in the amendment. He was setting out that the abnormality of mind was that of the deceased, rather than that of the person doing the killing. Those present understood what he was getting at. However, his amendments would lead to some bizarre and undesirable effects if we were to accept them.

The partial defence of diminished responsibility has never been designed to provide for such circumstances, but has always operated to make allowance for defendants who at the time of the killing were mentally impaired. We agree that that is the best basis for the continuation of the partial defence and wish to retain that limited scope. The partial defence should be limited to those whose own ability to exercise self-control, make a rational judgment or understand the nature of their conduct has been substantially impaired by their own abnormality of mental functioning. For the defence to succeed, they would need to show that the abnormality of mental functioning provided an explanation of the killing—we have just been discussing that—so there would have to be an element of causation, although not a heavy one. We do not believe, therefore, that the amendments of the hon. and learned Gentleman work conceptually.

It is a bit unusual to suggest that one person’s abnormality of mental functioning arising from a recognised medical condition would have the effect of substantially impairing a different person’s ability to understand the nature of their conduct, to form a rational judgment or to exercise control. The amendments would not serve the interests of justice, although we all understood the narrow ambit of the cases that he was talking about. However, explicitly providing the opportunity for the defence to inquire into the state of mind or general health of the deceased would be a worry. We would not want such things to become commonplace in cases where the deceased had been suffering from an illness of one kind or another, or to create a specific defence for the killing of people who are mentally impaired. The signal that sends to society and the public would be difficult to defend, and we cannot support the amendments of the hon. and learned Gentleman.

There has been a bit of discussion about the concept of “mercy killings” and a person who kills out of some feeling to relieve the suffering of the deceased. The current law of diminished responsibility requires the defendant to have been suffering from an abnormality of mind arising from one of a number of specified sources. Our proposal introduces the concept of a recognised medical condition. Conditions currently amounting to an abnormality of mind fall within the definition of a recognised medical condition in the new test. Our change of wording for the partial defence is designed to make the law clearer, easier, more modern and better able to move into the future. The definition should be easily understood rather than left behind by medical developments, as the current one arguably has been. Amendments 17 to 20 seek to address a perceived problem that we do not believe exists. Even if the problem existed as the hon. and learned Gentleman set out, we do not believe that his amendments would work in a desirable way to deal with what he had to say.

Amendments 164 and 165 of the hon. Member for Cambridge would undermine our efforts to modernise the partial defence. The effect of amendment 164 would be to remove the requirement that the defendant’s abnormality of mental functioning arose from a recognised medical condition, and he explained why he put that forward.

However, we believe that the inclusion in clause 39 of the requirement for a recognised medical condition to have given rise to the abnormality of mental functioning follows the Law Commission’s recommendations in its report “Murder, Manslaughter and Infanticide”. It is designed to bring the existing terminology of the partial defence up to date in a way that encourages defences to be grounded in valid medical diagnosis, linked to accepted classificatory systems, with the flexibility to allow for future developments in diagnostic practice.

We believe that “recognised medical condition”, despite the concerns that have been expressed in the Committee, is a substantial improvement on the current law. It is supported by organisations such as the Bar Council, the Law Society and the Royal College of Paediatrics and Child Health. We believe that it will bed down quickly and it will be easier for the courts and medical practitioners to use than is currently the case.

Amendment 165 would remove the requirement that the defendant’s abnormality of mental functioning must have been at least a significant contributory factor in causing him to act as he did. We have rehearsed some of the arguments about causation. We do not believe that the partial defence should succeed where random coincidence has brought together the activity of the person and the recognised medical condition. We want to be more explicit about the extent of the required connection than the Law Commission was. We recognise that the Law Commission was not engaged in legislative drafting, and that is why we say that there must have been at least a significant contributory factor in causing the defendant to act as he did. We do not require the defence to prove that it was the only cause or the main cause or the most important factor, but there must be something that is more than a merely trivial factor. There needs to be a link and we believe that the current wording gets that link right.

Amendment 165 removes all the detail and relies on the requirement that the abnormality of mental functioning must provide an explanation. Although the hon. Gentleman would no doubt argue that that does not remove a need for causation altogether, we do not consider that it is sufficiently precise. It is not clear how it would be interpreted by the courts and the defence.

David Howarth (Liberal Democrat, Cambridge)

The Minister has just expressed precisely why I want it to be like that, as the amendment intends. The attempt at precision is what is causing all the trouble. It is sometimes better to leave things to courts and to juries than to try to overdo the precision even more, which will get a reaction from the courts and from juries, which will be precisely what the Government did not want in the first place.

Maria Eagle (Labour, Liverpool, Garston)

I do not think that we are an enormous distance apart. We are talking about how much causation is necessary between the recognised medical condition and the abnormality that gives rise to the act. Given that we are changing the statute, we need a certain amount of provision, but we hope that the wording that we are putting forward does not imply that there must be a hard causal link. It has to be the main cause or even the most important cause, but it must be more than trivial. I am not clear that the hon. Gentleman’s wording of explanation is sufficiently precise, but we may have to agree to disagree. I do not think that we are an enormous distance apart.

Amendments 400 to 402 introduce the concept of developmental immaturity into the partial defence of diminished responsibility for people between the ages of 10 and 18. On the previous occasion that we met, the hon. and learned Member for Harborough was worried that it was excluding children from the partial defence. It does not do that. There are many people under the age of 18—indeed under the age of 10—who are diagnosed with recognised medical conditions that may substantially impair their ability to do all kinds of things, and it would certainly fit them into the kind of defence that we are setting out here. Autistic spectrum disorders, for example, spring to mind. They are sometimes diagnosed at a very early age, and parents usually know about it before doctors. However, that is not to say that they are not diagnosed at an early age—they are. Of course, the defence would still be open in respect of children who have had a recognised medical condition diagnosed.

The effect of the amendments would be to extend the partial defence to where the defendant’s ability to understand the nature of his conduct, form a rational judgment, or exercise self-control were substantially impaired by developmental immaturity. The Government came to the conclusion that it would not be appropriate to extend the partial defence of diminished responsibility to include the developmental immaturity limb when we were considering the recommendations of the Law Commission. We looked at this very carefully and the reasons are essentially twofold. First we are not persuaded that there is an underlying problem that needs to be addressed. Secondly, we think that there may be distinct disadvantages to introducing this limb to the defence.

During our consultation, the Government did not receive any evidence that the absence of a developmental immaturity provision in the existing law is causing any significant difficulties in practice, or resulting in injustice in specific cases. That being the case, we are not persuaded of the need to introduce this new concept in the context of modernising the partial defence.

We also believe that including the provision will create a serious risk of opening up the defence too widely and catching inappropriate cases. Opening the door to young people to plead developmental immaturity would complicate the trial unnecessarily in many cases where a defence of diminished responsibility should not be available, because the defendant is clearly in possession of all their normal faculties and is at a level that one might expect at their age. One could not blame advocates for trying any available defence—those of us on the Committee who have ever practised law have all looked at every possible angle. That is part of being an advocate. Therefore, no matter how unlikely it might be that it could succeed, including the provision may open the defence in a way that we do not want to, to a much wider range of cases, in order to deal with an issue with which we are not confident that there is a real practical problem.

However, we are confident that obviously deserving cases—I have given the example of a child with an autistic spectrum disorder—are covered by the defence as it is currently cast. On that basis, we do not believe that there is a serious issue of young people being denied the defence of being disadvantaged with respect to adults. The defence may be available to a person of any age, whether over or under 18. In essence, wherever a defendant, young person or adult, suffers from an abnormality of mental functioning arising from a recognised medical condition, it would be open to them to make the case that that substantially impaired their ability to understand the nature of their conduct, to form a rational judgment, and to exercise self control—or a combination of those three things. Even where a relevant abnormality of mental functioning is present, a defence will succeed only if the impairment of those abilities caused, or was a significant contributory factor in causing, the defendant to carry out the killing. We believe that that is the right balance and that the partial defence should apply only in those circumstances. I hope that that explains why we have come to the conclusion that we should not follow the Law Commission’s recommendation in respect of developmental immaturity.

I have probably been speaking for quite long enough on this group of amendments. I should like to invite the hon. and learned Member for Harborough to withdraw his amendments, but no doubt he will have something to say to us about that.

Edward Garnier (Conservative, Harborough)

I am grateful to the Minister for explaining the Government’s response to the arguments put forward by the hon. Member for Cambridge and me. However, I am still of the view that if the Bill were a ship, it would capsize. It is constructed on a small hull—its title, the Coroners and Justice Bill—but the superstructure is too heavy and too big for the vessel. Over the past hour or so and at the end of our previous sitting, we have had reasonable debate about one of the most important aspects of the criminal law. However, this part of the Bill is spatchcocked into a measure that deals, literally, with between 15 and 20 other discrete and complicated areas of the law. I urge the Government not to do that because although we have been having a good conversation, it is not the way to develop the criminal law.

I also urge the Government not to rely on or be seduced by the adjective “modern”; although it sounds nice and effective, it hides a multitude of ill-considered ideas. The reason why the common law—if I may say so—works is that it has been thought about in a developmental way over many centuries, not cobbled together in an overcrowded Bill in a timetabled Committee sitting. We cannot do anything about that now, and we have done our best in the short time we have, but I repeat my plea to the Government not to do that spatchcocking again. I said the same thing during the Criminal Justice and Immigration Bill, the Offender Management Bill and a number of the other Bills related to criminal justice that the Government have presented since 1997. I say it not only because I think that the system would be better in itself, but because it would make my life more comfortable. As the Committee knows, and is bored of me saying, I am not only a Member of Parliament, but a Crown court recorder, a part-time criminal judge. One of the things that I have to do is to take judicial refresher courses, which I do on both a day-case basis and a three-day residential course basis at Warwick university.

Henry Bellingham (Conservative, North West Norfolk)

Take the Minister with you.

Edward Garnier (Conservative, Harborough)

My hon. Friend anticipates me. I urge Ministers, if they ever have the time, to come to the Judicial Studies Board courses, because they will see how devastating the analysis of the legislation is. Nobody suggests that Ministers are ill-motivated, but people suggest that Ministers are in too much of a hurry to pass legislation, as if that answers the public policy problem that is revealed.

Listening to the hon. Member for Cambridge has reminded me somewhat of the lectures I have heard by David Thomas, John Spencer and Nicola Padfield, who are all colleagues of the hon. Gentleman in academic life at Cambridge university. Although we are in Committee to legislate, not to have an academic discussion, it is important that if we are developing the criminal law, we should do so with some measure of understanding about what we are doing. The law should be fair, particularly in relation to homicide, and the punishment should fit the crime. The law should also produce a rational division of function between the judge and the jury. Perhaps more important in relation to the discussion we are having, it should be easy for the citizen to understand and for the jury to apply.

Despite all the references to the words “modern” and “modernisation”—

Maria Eagle (Labour, Liverpool, Garston)

I only said it once.

Edward Garnier (Conservative, Harborough)

Now the Minister is getting defensive. We are in danger of producing more and more law that is less and less easy to understand. The Minister may not suffer from it but I do, because when I go to the JSP courses, as the only parliamentary representative on such occasions, they blame me for passing those laws. I urge both Ministers to spare a few moments and come to one of the courses—they would find it instructive.

James Gray (Conservative, North Wiltshire)

They would be lynched.

Edward Garnier (Conservative, Harborough)

They might avoid that. Both the hon. Member for Cambridge and the Minister rehearsed the existing law. They took us through section 2 of the Homicide Act 1957 and the Law Commission’s recommendations. From their different standpoints, they told us why the commission’s recommendations should or should not be followed. My sympathies, I am afraid, lie more with the hon. Gentleman than with the Minister on this occasion—albeit that I fully accept the political difficulty that all Governments face in relation to the question of the mandatory life sentence for murder. Until we unravel that difficulty—today is not the day to do that—we will go through the complicated hoops and over the hurdles that have been mentioned today.

I fully accept the Minister’s points in relation to my arguments about the victim’s state of mind affecting that of the killer. I will not pursue those arguments further but they were worth putting on the record. They might be more suitable for writers and academics than for a Public Bill Committee, and perhaps such arguments can be further developed in another place. I do not want to press the amendments further, and I thank the Minister for responding carefully to them.

There is more work to be done on the issue of developmental immaturity. Although I accept the Government’s response, and I understand why it differs from that of the Law Commission and from the views held by the hon. Member for Cambridge and me, the argument will not go away. The difference between what the Government propose and what we argue for relates to the question of developmental immaturity. The Law Commission was anxious to include that because criminal responsibility begins at the age of 10. At that age the frontal lobes of the brain, which govern self-control among other things, are not fully developed. Most experts who were consulted considered it essential to have regard to that factor when considering the extent of a young defendant’s responsibility for his conduct.

As the Minister said, the Government did not accept that line of argument for two reasons. First, they do not believe that the absence of such a provision is causing serious problems in practice and, secondly, they felt that it would open up the defence too widely and catch inappropriate cases. Even if it were to succeed only rarely, as the Law Commission suggests, the Government thought it likely that far more defendants would try to run that defence, thereby diverting attention from the key issue in too many trials.

As a matter of practice, judges are quite acute at preventing defences from going down cul-de-sacs or chasing irrelevant issues. Juries can spot a dodgy case when they see one, even if they might not approach the issue in the same academic or rational way as the hon. Member for Cambridge or a trial judge. There is a certain paradox in the Government’s approach to the arguments that have been put forward by the Law Commission and those who agree with it.

At present, natural developmental immaturity in a child who has reached the age of 10 does not constitute a defence. That may be why developmental immaturity is not causing problems in practice. However, it is surely offensive to justice that a child whose brain has not yet developed to the extent necessary to provide the self-control found in an adult should be unable to pray that fact in aid, at least as a partial defence. Children develop at different speeds. If—I accept that this is a big if—some are sufficiently mature at the age of 10 to have full criminal responsibility, those who are not should be entitled to pray that fact in aid.

Maria Eagle (Labour, Liverpool, Garston)

Is not the hon. and learned Gentleman making an argument for raising the age of criminal responsibility, rather than including a developmental maturity limb in the partial defence? What is his party’s position on that?

Edward Garnier (Conservative, Harborough)

We are at a stage of developmental immaturity in relation to the issue of doli incapax. I will not pretend to come back with a smart Alec answer. None the less, this is a live issue that needs to be considered. I hope that I have answered the Minister’s question in a way that does not dismiss it off hand.

We must ask ourselves about the key issue from which a plea of diminished responsibility by reasons of developmental immaturity would detract. Such a plea is likely to be advanced only when there is no issue about the fact that the defendant had committed the killing. If provocation was also being used as a defence, the age of the defendant, and its effect, would have to explored for that purpose.

There is perhaps a wider issue about whether under common law it would still be open to a child to advance a plea of doli incapax, or lack of criminal responsibility. That issue has been discussed in textbooks and I will not delay the Committee further by going through it. In all events, it will be apparent that my sympathies, and those of the Conservative party—and this might be true of individuals in other parties as well—tend towards the Law Commission’s view rather than that of the Government.

Having said that, as I indicated last Thursday, I am not going to press this matter to a vote; it is almost too important to be limited to a yes or no answer and requires a lot more thought. The Government are in a hurry, the Bill is too big and we in the House of Commons cannot properly discuss these issues in a way that produces a law that is clear, fair and understandable to the jury and the wider public.

I will leave the matter there for the moment and invite the Government to think about it between now and the time that the Bill arrives in the other place. In closing, I invite those in the other place to use the opportunities that they have, untrammelled by time constraints, to think about this and advise us more clearly. Should they come back with any amendments, I hope that we will be given the time to consider them. I beg to ask leave to withdraw the amendment.

Clause 41

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment 168, in clause 41, page 25, leave out lines 5 to 7.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 206, in clause 41, page 25, line 6, after ‘self-control’, insert ‘caused by gross provocation’.

Amendment 169, in clause 41, page 25, leave out lines 11 and 12.

Amendment 207, in clause 41, page 25, line 17, leave out ‘considered’.

Amendment 170, in clause 41, page 25, leave out lines 18 to 21.

Amendment 2, in clause 41, page 25, line 18, after ‘adduced’, insert

‘by the defendant, whether or not deliberately or, if adduced by another, relied upon by the defendant,’.

Amendment 171, in clause 41, page 25, line 22, leave out ‘(5)’ and insert ‘(1)’.

Government amendment 266.

Clause stand part.

Amendment 3, in clause 42, page 25, line 35, at end insert

‘(provided that D’s fear of serious violence must have been aroused within a period that was in all the circumstances reasonably proximate to the killing of V)’.

Amendment 450, in clause 42, page 25, line 39, leave out paragraph (b).

Amendment 173, in clause 42, page 25, line 39, leave out ‘a’ and insert ‘an objectively’.

Amendment 416, in clause 42, page 25, line 39, leave out ‘seriously’.

Amendment 4, in clause 42, page 25, line 39, at end insert ‘, and

(c) was done or said within a period that was in all the circumstances reasonably proximate to the killing of V’.

Amendment 5, in clause 42, page 25, line 41, at end insert

‘so long as they occurred within a period that was in all the circumstances reasonably proximate to the killing of V’.

Amendment 6, in clause 42, page 25, line 42, leave out subsection (6).

Amendment 417, in clause 42, page 26, line 2, leave out ‘or said’.

Amendment 418, in clause 42, page 26, line 4, leave out ‘seriously’.

Amendment 419, in clause 42, page 26, line 4, leave out ‘or said’.

Amendment 174, in clause 42, page 26, line 5, leave out ‘justified’ and insert ‘justifiable’.

Amendment 420, in clause 42, page 26, line 5, leave out ‘or said’.

Amendment 176, in clause 42, page 26, line 7, leave out paragraph (c) and insert—

‘(6A) Violation of a code of honour or sexual infidelity are not to be regarded without more as circumstances of an extremely grave character for the purposes of subsection 4(a) above.’.

Amendment 7, in clause 42, page 26, line 7, leave out paragraph (c).

Amendment 175, in clause 42, page 26, line 7, leave out ‘or said’.

Amendment 111, in clause 42, page 26, line 8, after ‘disregarded’, insert

‘unless the fact that the thing done or said which constituted sexual infidelity is relevant to other things done or said (or both) which do not constitute sexual infidelity but which are put forward as qualifying under subsection (4) of this section.’.

Clause 42 stand part.

Clause 43 stand part.

David Howarth (Liberal Democrat, Cambridge)

We now come to the second part of the defence proposed by the Bill. This time the defence is that of loss of control, which is proposed to replace the existing defence of provocation. My remarks about the relationship between the law of murder and the partial defences apply equally in this regard, and I do not want to go through those arguments again. However, the general structure of the idea is that if one were to reform the law of murder in a more accurate way so that the mandatory life sentence applied to a specific type of case, at that point it would become entirely justifiable to start to narrow the defences that allow a charge of murder to be reduced to one of manslaughter.

[Stephen Hesford in the Chair]

In this particular case, there is an extra complication, which is that the defence of provocation is somewhat dubious in the first place. Most people would get the underlying moral idea of diminished responsibility immediately—that someone was not entirely responsible for their own actions and, therefore, should not be treated in the same way as someone who was fully morally responsible for their actions. That seems to be a clear moral principle, although often difficult to apply in individual cases.

Provocation does not have the same clarity, at least for me, because its starting point seems to be a defence that blames the victim. The idea of provocation is, “He made me do it”—something that the victim did provoked the defendant to carry out the homicide. I do not find the moral base for that as clear as for diminished responsibility. My instinct, always, is that diminished responsibility should be broader and that provocation should perhaps be narrower. The Government are in danger of broadening the whole idea of provocation, making it a much broader defence, for a reason of which I am not entirely sure.

One of the things that the clause does is to remove the idea that the action that somehow caused the defendant to carry out the killing was something to do with the victim. If one talks about loss of control in the context of a justifiable wrong, which is what the clause does, but forgets about who did that justifiable wrong, the provocation has been turned into the kind of defence in which being angry with the world is an excuse to kill someone. I cannot see, morally, how that is the case. As I said, I would prefer the defence of provocation to be as narrow as possible.

There are hard cases, such as that important set about battered wives, which the law struggled to bring within the categories of the provocation defence. It always seemed to me that the way to deal with the problem was to broaden diminished responsibility and not to try and jam those cases into provocation.

Maria Eagle (Labour, Liverpool, Garston)

Was the hon. Gentleman not arguing for the narrowing of diminished responsibility in our previous debate?

David Howarth (Liberal Democrat, Cambridge)

If we stay within the context of unreformed murder, my position is to broaden diminished responsibility. But if we reform murder, we can talk about narrowing all the defences, because they are all about the relationship between murder one and murder two—between murder and manslaughter. If we stay with what the Government want, which is to leave murder unreformed, the way to deal with the battered wives cases is to broaden diminished responsibility and not to jam such cases into the provocation defence.

What the Government propose in the clause is a “loss of control” defence. My starting point is that I cannot really understand why that should, in itself, be a defence. Murders, to me as a non-expert in criminal law, largely involve people losing control. Part of why violent offences are wrong is that people did not control themselves in a situation in which they plainly should have done. Rather than introduce the strange notion of loss of control, I much prefer to deal with the ideas in the clause as part of the reform of the law of murder itself. It is even more strange when the clause refers to loss of control not being sudden. I do not understand what that means.

Loss of control has to happen at some point. There might be a long build-up to the loss of control, but it seems inherently to be an event not a process. A process leads up to it happening. It then happens, but it still happened at a particular time. That part of the clause seems to be the result of confusion about the very idea of loss of control. If we are dealing with battered wives cases as part of the defence, we are still left with the problems under the previous law. [Interruption.]

Frank Cook (Labour, Stockton North)

Order. The hon. Gentleman is speaking.

David Howarth (Liberal Democrat, Cambridge)

It would still be a requirement in battered wives cases to prove loss of control by the defendant. Throughout the debate, the Government have been avoiding that part of the clause to give the impression that another provision does not depend on the loss of control. The whole clause depends on loss of control and that cannot be avoided.

The clause has a further general problem. It is simply confusing. For example, in evidence to the Committee, there was an issue about whether the clause covers the situation in which excessive force was used in self-defence. Some people have written to say that one problem of the clause is that excessive force in self-defence will no longer be treated as providing a partial defence unless loss of control can be proved. That narrows the scope of defence for defendants when they have gone too far in defending themselves. Justice took that position.

However, in contrast, Liberty made the opposite argument about precisely the same part of the clause. It said that the clause clarifies the case when a person overreacts to what they perceive to be an imminent threat, and that the clause could impact differently on such cases. The Government might not like to hear it, but Liberty said that in cases in which juries are unwilling to convict people who kill burglars—a controversial matter that we discussed while debating another Bill—a conviction would be more likely, which I doubt that the Government would want to see. There are two different readings of precisely the same problem and what the clause says about it. If the clause is that confused, perhaps the Government should think again.

[Frank Cookin the Chair]

Amendment 168 would remove the loss of control element from the clause. It is bad in principle, makes no sense and will cause injustice. Amendment 169 would remove the suddenness provision. That makes no sense and—I suspect—no difference.

Amendments 170 and 171 are more technical. They arise from the evidence that was given to us, about the problem with the current drafting of the clause. Complications could occur in a case in which the defendant has both a self-defence and a provocation argument. It seems that under the clause as drafted, the defendant would get into trouble and be unable to run both those defences because there would be a presumption that the provocation defence was in play, which would undermine the self-defence argument. Therefore, it was suggested to us that we should redraft the clause to ensure that that would not happen. Although the proposed solution might not be perfect, there is a problem in the clause, which we have been invited by those who gave evidence to us to correct.

Amendment 173 would insert the word “objectively” into the leg of the defence that talks about the feeling that there had been a justifiable wrong. The amendment allows the Government to clarify what they think the situation is in that part of the defence. The question is: who would decide whether a feeling of being wronged was justifiable? Would it be a subjective feeling—simply what is felt by the defendant—or would it be judged objectively by the court, either by the judge or ultimately by the jury? That is especially important in cases of honour killings. My concern throughout the debate on the clause has been that there is a possibility—undoubtedly by inadvertence—that honour killings would be treated more leniently under the clause than they would have been under previous laws. As I think is agreed on all sides, that is the opposite to what anyone in the Committee intends. Inserting the word “objectively” in the clause would clarify that question. I am usually no great fan of inserting the word “objective”, because it has many different meanings, so if the Government come up with a better solution, I will be more than happy. None the less it is an issue: when offences are drafted, it needs to be made clear who decides what, what the defendant personally thinks, and what the jury and the judge do.

Amendment 174 would clear up an anomaly—again, it is a small technical point. In clause 42(4), the word “justifiable” is used, yet when we reach subsection (6)(b), the word “justified” is used instead. The two words are not the same thing; something capable of being justified is different from the act of being justified. I would like the Government to make up their mind which of the two they want.

Amendments 175 and 176 relate to the controversial issue of sexual infidelity in the law of provocation and loss of control. There has been some disquiet in the legal community about why one particular form of provocation or loss of control had been picked out, when there are other forms that one might equally insert in the primary legislation to state that they should not form the base of a defence. There are two ways of dealing with the problem. The first is to remove any specific circumstances from the face of the Bill, and the other is to think about other cases where we might want to say to the courts, “Do not regard this particular set of circumstances as one in which that defence could be run.” In line with my general feeling that the defence should be narrower, we have chosen the latter route, rather than the former, although the hon. and learned Member for Harborough appears to have chosen the former. Nevertheless, there is a problem and we have suggested that honour killings be included on the list of types of case where that defence should not be allowed.

We have also taken into account representations to the Committee that “circumstances being disregarded”—the wording of the existing clause—leads to some difficulty. It might mean that where the context for some other form of provocation needed to be explained, it might become impossible to explain that to the court. We have suggested a drafting change, which would link that particular problem to what counts under the clause as circumstances of an “extremely grave character”. Saying that certain circumstances cannot count as those of an “extremely grave character” would be a more effective way of doing what we want to do.

Finally, there is the puzzle about things said constituting sexual infidelity. I am far from clear what the intention of the proposals is. I suppose that if one read the New Testament in a particular way—especially in the same way as President Jimmy Carter notoriously did—things thought can count as sexual infidelity, as well as things said. However, I cannot see how that works for those of us who operate in a common-sense world, where sexual infidelity is something that someone does, rather than something they say or think. The case that has been put to us is an important one. It is that often in such cases the defendant claims that his—it is usually that way around—partner “taunted” him and that somehow she committed sexually infidelity with words. However, that is not so. The words do not constitute the sexual infidelity, the words—the taunting—are an act. We need to work out how to draft the clause in a way that captures what we want to capture and does not make no sense at all.

The underlying problem is that one has to be very careful with that defence. Historically, it has been a blame-the-victim defence and I do not want to see it become too broad.

Edward Garnier (Conservative, Harborough)

From what the hon. Gentleman said in opening his remarks on the amendment, it is apparent that he and the Liberal Democrats and we on the Conservative Benches are broadly travelling down the same road. I want to ensure that what we achieve at the end of the debate is a better law of provocation, or one that is easier for the criminal courts to apply.

It is probably not necessary for me to go through my amendments in detail, beginning with amendment 206. In essence, what we are about—in line with the recommendation of Mr. Lodder, the representative of the Criminal Bar Association—is changing the description of the partial defence from that of loss of control to that of gross provocation. We are also concerned about the proximity of the aggravating, or provoking, event to the killing, and about the use of the expression “considered...revenge” in clause 41(4):

“Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.”

I do not want a prolonged and footling discussion about revenge being considered or unconsidered. If somebody does something from a sense of revenge, it does not matter how considered it was. That must surely take it outside the ambit of the partial defence. Like the hon. Member for Cambridge, we are concerned about some of the qualifying triggers, and there needs to be much greater thought behind clause 42(6)(c) in relation to the application of sexual infidelity to the partial defence.

If I may, Mr. Cook, I will begin by going back to first principles to try to work out what provocation is under the current law, and then move forward from there. Mr. Justice Devlin, as he then was, provided this definition in the case of Duffy in 1949, which has stood the test of time:

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

That partial defence—judge-made law—was intended to mitigate the rigour of an offence that in those days attracted the death penalty. Not long before, in 1946, the House of Lords had considered the case of Holmes in which a defendant had hit his wife over the head with a hammer and then strangled her. He claimed that he had been provoked because she had confessed to sleeping with another man. This was not the most attractive of pleas, given that he had gone off to his own mistress and told her that his wife had gone away, which was, I suppose, in some senses true. The House of Lords held that, as a matter of law,

“a confession of adultery, without more, is never sufficient to reduce an offence which would otherwise have been murder to manslaughter”

and that only in circumstances of a most extreme and exceptional character would words alone amount in law to provocation.

Had the law stopped at that point, there would have been little need for some of the reforms that the Government are proposing. However, the Homicide Act 1957 changed the law and provided in section 3 as follows:

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

That made three changes to the existing common law. First, it established that words alone could amount to provocation. Secondly, it meant that the court could not rule that as a matter of law something was not capable of amounting to provocation. That question had to be left to the jury, however absurd the claim of provocation might appear—the Law Commission gave the example of the wife who burnt her husband’s steak. Thirdly, it meant that the judge could no longer dictate to a jury what were and were not the characteristics of a reasonable man.

The courts, not least the House of Lords, then got into a bit of a bind deciding how the jury should decide what effect the provocation should have on a reasonable man. Should the reasonable man be assumed to have the age of the defendant? That would be significant if the defendant was very young. What if the defendant were a homosexual, a glue-sniffer or a man with a very short temper? Should the jury consider the effect of the provocation on a man with those characteristics? Ultimately the Law Lords wrapped up the issue in the case of Holley, a Privy Council appeal from Jersey. They decided by a majority that it was right to have regard to the special characteristics of the accused when considering the sting of the provocation, but not when deciding the effect that such sting would have on a reasonable man.

The Law Commission found all that rather unsatisfactory. It also found it unsatisfactory that the courts had declined to extend the partial defence of provocation to reaction against fear of attack. Reasonable force can be used in self-defence, and provides a complete defence to a charge of murder. If, however, the force is more than a reasonable reaction to the threat, it will not even provide a partial defence to such a charge. Furthermore, the battered wife who from fear of further attacks kills her husband as he sleeps cannot properly invoke the partial defence of provocation.

As the Minister will no doubt explain in a moment, the Law Commission recommended that the defence of provocation be reformed in a number of ways. Unlawful homicide that would otherwise be first degree murder should instead be second degree murder if, first, the defendant acted in response to gross provocation, which means words, conduct or a combination of both that caused the defendant to have a justifiable sense of being seriously wronged, or fear of serious violence towards the defendant or another, or the combination of those two. The second main reason for the change would be if a person of the defendant’s age and of ordinary temperament—ordinary tolerance and self-restraint in the circumstances of the defendant—might have reacted in the same or a similar way.

In deciding whether a person of the defendant’s age and of ordinary temperament—that is, ordinary tolerance and self-restraint in the circumstances of the defendant—might have reacted in the same or a similar way, the court should take into account the defendant’s age and all the circumstances of the defendant other than matters whose only relevance to the defendant’s conduct is that they bear simply on his or her general capacity for self-control. A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.

The proposed reform significantly restricts the scope of the defence of provocation and gives the judge control over whether it could be raised. It would, however, leave it open to the jury to find provocation established when a spouse was unfaithful and by words, conduct or both caused the other spouse to have a justifiable sense of being seriously wronged. The Government’s proposals go some way to adopting the Law Commission’s recommendations, but the reasoning advanced for that differs somewhat from that advanced by the commission. Ministers contend that the law of provocation has operated in the domestic context in a way that has discriminated unfairly in favour of men and against women. Men have been permitted to rely on their anger about their wives’ infidelity as a partial justification for killing them, whereas women who have been physically abused by their husbands and have killed them from fear of further abuse have been denied the defence of provocation.

The Government propose that provocation should reduce the offence of murder to manslaughter when the defendant’s conduct has resulted from a loss of self-control triggered by a fear of serious violence from the victim. That mirrors the commission’s proposal. Ministers would, however, further restrict the ambit of provocation caused by words or deeds to a greater extent than the commission’s formula for gross provocation. Under the Bill, the Government’s formula requires a loss of self-control attributable to things done, said or both, which amounted to an exceptional happening and caused the defendant to have a justifiable sense of being seriously wronged. The provisions go on to provide that an act of sexual infidelity is not of itself an exceptional happening.

Maria Eagle (Labour, Liverpool, Garston)

I know that “exceptional happening” was referred to by the Law Commission, but the phrase is not in the Bill.

Edward Garnier (Conservative, Harborough)

It is not. The Minister is right, but the concept behind the set of words is. I am not proposing to have a semantic argument about subsection (6)(c) of clause 42, which states that

“the fact that a thing done or said constituted sexual infidelity is to be disregarded.”

The general issue of whether sexual infidelity is to form part of the discussion is in both the commission’s report and the Bill. No doubt when the Bill was in gestation, “exceptional happening” and “disregard” were discussed in the Minister’s office. The Bill is now as it is, but the themes that need to be clear in our heads today are properly described by the words that I have used.

As the Minister will remember, when the Bill was being thought about, she issued a press release from her Department, which stated:

“For men and women who kill their partners these changes will mean that the letter of the law finally catches up with judges and juries who, in recent years, have been less prone than people think to let men off lightly and punish women harshly. However, in order to be fair they’ve had to stretch the law to its limits. With these changes, the law will be clearer.”

I am sure that subsection (6)(c) of clause 42 clarifies the law, but whether in a sensible direction is the point at issue in our amendment. As far as letting men off lightly is concerned, it causes a degree of difficulty. The current law requires provocation to be conduct that would cause a reasonable man to act as the defendant acted. If juries are declining to hold that infidelity meets that test, I cannot understand why it should be suggested that they are stretching the law to its limits.

Maria Eagle (Labour, Liverpool, Garston)

I am trying to follow what the hon. and learned Gentleman is saying, but would he throw that one at me again?

Edward Garnier (Conservative, Harborough)

Would the Minister like to catch it with one hand or two? If the Minister is finding it difficult to follow what I am saying, I shall return to the Bill and take her to the text. I had hoped to avoid a line-by-line analysis of the Bill, because we are in Committee not so much to discuss the detail of the amendments—often a device to provoke discussion—because the hon. Member for Cambridge has taken us through some of them, which if not in identical words to mine are broadly similar in effect.

Maria Eagle (Labour, Liverpool, Garston)

I am not inviting the hon. and learned Gentleman to go through the whole Bill if he does not feel inclined to do so; I just wanted him to clarify his point that I did not quite catch.

Edward Garnier (Conservative, Harborough)

Which point did the Minister not quite understand?

Maria Eagle (Labour, Liverpool, Garston)

I fear that I have probably forgotten it by now. I could not follow the argument that the hon. and learned Gentleman was making from whatever he was reading.

Edward Garnier (Conservative, Harborough)

I am sorry that the Minister did not follow my argument. No doubt she will be able to defend the Government’s proposals in clause 41 as a matter of general argument and in response to how we have drafted—I almost said pleaded—our amendments.

It seems to us that loss of control is a less useful way of describing a partial defence than gross provocation. It seems to us that the matters referred to in the clause dealing with revenge are in need of tightening and clarification. It seems to us that the “slow burn” provocation may have value in justice, but needs to be better explained during the course of debate on clauses 41 and 42. Our amendments on proximation need to be answered, even if they are not wholly accepted. Loss of control or gross provocation caused by sexual infidelity are matters that also need to be thoroughly explained.

I have an eye on the clock and the approximately 150 to 200 more pages of the Bill we have to discuss. We, as a collective, must at some stage deal with them. The hon. Member for Cambridge and I, through our amendments and remarks, have—I trust—provoked a discussion, to which the Government and their supporters need to respond. I look forward to hearing the Government’s response to our suggestions.

Maria Eagle (Labour, Liverpool, Garston)

I shall do my best to respond to the points made by the hon. Member for Cambridge and the hon. and learned Member for Harborough and to deal with the issues raised by the amendments. I shall try to set out what we seek to achieve by settling upon the wording in the Bill rather than some of the wording originally suggested by the Law Commission, following the consultation on our other consideration.

Loss of control is a new partial defence, and I shall explain why we have settled on the current proposals. The Government are persuaded that in a small number of murder cases the existing partial defence of provocation is too generous to those who kill in anger and is poorly tailored to killings in response to fear. I am not clear whether the hon. and learned Member for Harborough accepts that point, but the Law Commission did, as did the hon. Member for Cambridge in his remarks.

The Government also accept that point, and we seek to address the concern by abolishing the partial defence of provocation and replacing it with a new partial defence where a defendant kills as a result of loss of self-control attributable to one of the triggers that I will describe. I emphasise that the new loss of self-control partial defence is intended to have a higher bar than the current provocation defence. We are making the defence available to what will—we hope—be a smaller number of cases. That is the intention and I hope it answers the point raised by the hon. Member for Cambridge. The triggers are fear of serious violence, words or conduct that cause the defendant to have a justifiable sense of being seriously wronged and constitute circumstances of an extremely grave character, or a combination of those.

We are dealing with the clause stand part debates in this grouping. Clause 41 sets out the criteria that need to be met for the new partial defence to succeed. Clause 42 deals with the three qualifying triggers in more detail and clause 43 seeks to abolish the current law of provocation.

The defence is constituted in the following way. First, what the defendant has done must have resulted from a loss of self-control. However, that loss of self-control need not have been sudden, as it would need to be under the current defence. I will return to some of those points in the context of the amendments. Secondly, one of the triggers must have been present to account for the loss of self-control and, thirdly, the jury must be satisfied that a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted as the defendant did.

We are addressing the question of when the judge must put the case to the jury—the hon. and learned Member for Harborough alluded to that point. It is when evidence has been adduced during the trial on which a jury could reasonably find that the defence might apply.

Finally, we are making explicit certain types of situation where the defence will not be available. That includes when a person acts from a considered desire for revenge or when the defendant incites someone to do or say things for the purpose of providing them with an excuse to use violence. Additionally, the fact that something done or said constituted sexual infidelity is to be disregarded when deciding whether there is a qualifying trigger. In a nutshell, that is the shape of the partial defence.

Let me deal with some of the details. Government amendment 266 aims to clarify when the trial judge must put the loss of self-control partial defence to murder to the jury. It is intended to put beyond doubt that the trial judge must ask himself, or herself, whether a properly directed jury could reasonably conclude that that defence might apply. In other words, where the judge takes the view that a jury could not reasonably conclude that the defence of loss of self-control might apply, he or she should not put the matter to the jury. It was always the Government’s intention, in light of general case law regarding how judges should direct juries, for clause 41(5) to be interpreted as having that effect. However, we have reflected carefully on the wording and feel that it is important to put the matter beyond doubt. That is the purpose of Government amendment 266 and I hope that the Committee will accept it.

Amendments 168, 169 and 3 to 5 deal with the requirement for loss of self-control and are very much at the heart of the proposals for the new partial defence. Amendments 168 and 169 seek to remove the requirement for loss of self-control from the partial defence. The Government believe that the requirement for loss of self-control is an important safeguard in ensuring that the defence cannot succeed where the defendant kills in cold blood. All members of the Committee will want to ensure that. It would be wrong to allow a defence for murder for someone who kills when they are in full control of themselves, unless they are pleading self-defence—a full defence—to a charge.

The Government also believe that it is right to change a law so that there is no longer a requirement that a loss of self-control needs to be sudden for the partial defence to succeed. That goes to the heart of what the Law Commission said about the imbalance in the provocation defence as it currently works. In other words, it is too generous to those who kill in anger, yet is not generous enough to those who have killed in fear.

The approach that we are taking more explicitly makes allowance for situations where the defendant’s reaction has been delayed or builds gradually than under current law. The examples that are typically used, which have been mentioned by both hon. Gentlemen, are slow-burn domestic abuse cases. One could conceive of other cases, but those are the ones that typically come before the courts.

In this context, it is important to note that although it is a requirement under the current law relating to provocation that a loss of self-control must be sudden, case law has developed over time to the effect that the partial defence might still apply where there is a delay between the provocative incident and the killing. That has largely developed in response to the slow-burn domestic abuse cases. However, achieving that has necessitated a rather strange interpretation of the suddenness requirement, to say the least.

In the press release that the hon. and learned Gentleman was kind enough to read to the Committee on my behalf I was making the point about—

Edward Garnier (Conservative, Harborough)

I am here to help.

Maria Eagle (Labour, Liverpool, Garston)

I am grateful to the hon. and learned Gentleman for his help.

I was talking about trying to bring the statute into line with the developing practice in the courts, because Committee members who are lawyers will know that something tends to give once a statute is stretched beyond the ordinary meaning of the words and particular cases get up as far as the House of Lords. In many instances, it is best if we can change a statute in advance of that happening to avoid emergency legislation, for example, having to be dashed through the House, which is not unknown in the not-too-distant past. So that is the purpose of the provision.

We recognise that if we just used the words “loss of self-control”, it would be read too much within the current requirements in respect of suddenness, which have been there for a long time and are derived from case law rather than statute law. So we want to be clear.

Amendments 3 and 5, tabled by the hon. and learned Gentleman, would leave in the Bill the requirement in respect of loss of self-control and the stipulation that it need not be sudden, but would restrict the time between the trigger and the loss of self-control to the killing, which he referred to as proximation. The Government are sympathetic to the concerns that the hon. and learned Gentleman has raised. We all want to rule out killings in cold blood from coming within the ambit of the partial defence. That is undoubtedly one of the reasons for his drafting his amendments as he has done. However, the relevant clauses already offer sufficient protection to rule out unmeritorious cases. The amendments are unnecessary and have a number of potentially undesirable effects.

The introduction of the hon. and learned Gentleman’s concept of “reasonably proximate” would add a layer of complexity to the test for establishing whether the partial defence applies. That is not necessarily a killer fact, but it is a disadvantage. It would, in effect, replace the requirement for a sudden loss of self-control with a requirement for a reasonably proximate loss of self-control. But what would count as reasonably proximate? Situations where there is a time delay often arise where the defendant has been subject to long-term abuse—we go back to the domestic violence cases—at the hands of their partner whom they eventually kill. Quantifying how long that delay might be would be hazardous in a statute.

The matter needs to be considered in the light of the evidence on a case-by-case basis and the current wording enables that to happen, whereas the concept of reasonable proximity is too difficult to be flexible enough to deal with all the potential circumstances and individual cases. It is also not a familiar concept in the criminal law. Hence its precise meaning and likely effect is less than clear. It would probably take some time for case law to be established around it and illuminate the meaning of that term in this context. The hon. and learned Gentleman’s formulation would not be as useful as that in the Bill.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I understand the Minister’s argument, but could it not be said that the concept of proximity is what defines the line between the defence being available and acting with a “considered desire for revenge”? Is proximity not likely to separate someone acting in accordance with the defence set out in the Bill and acting with a considered desire for revenge?

Maria Eagle (Labour, Liverpool, Garston)

I understand the point that the hon. Gentleman makes. The domestic violence abuse cases that gave rise to the Law Commission’s concern that the defence as formulated does not deal with fear and that it may be too generous to reactions made in anger are not at all clear. Indeed, there would be enormous variations, from person to person and circumstance to circumstance, in those who have been beaten up over a long time. Where is the reasonable proximity in such cases?

If it were clearer, I might have more sympathy for the Opposition’s formulation. However, there is a great diversity in reactions of fear. The evidence in many cases is that the oppression has been going on for years and that the oppressed partner—it is usually a woman, but it does not have to be—has gradually fallen into the battered wife syndrome state that finally leads to the killing. The formulation of reasonable proximity proposed by the Conservative party does not help to make it clearer where the line ought to be drawn.

As I said, I understand the point that is being made, which is that one cannot leave it completely open-ended, or we may be incorporating some sense of a desire for revenge that none of us wants to be imported into the partial defence.

Edward Garnier (Conservative, Harborough)

I follow what the Minister says, but could she point me to the provision in clause 41 that nails to the ground my point on proximity to and renders it wholly unnecessary?

Maria Eagle (Labour, Liverpool, Garston)

I am not saying that it is wholly unnecessary. I have some sympathy with what the hon. and learned Gentleman is trying to achieve. I doubt whether any of us would want the partial defence to allow killing in cold blood. We are all trying to rule that out—the hon. and learned Gentleman with his formulation of reasonable proximity and we with the provisions in the Bill. We all want to rule out unmeritorious cases, and we believe that our formulation does so.

None the less, I understand the point being made. We are using different wording in trying to draw the line in an appropriate place. If one removes suddenness, one has to have some other barrier to stop opening up the defence to all kinds of unmeritorious circumstances. We believe that the requirement for loss of self-control combined with the exclusion of a considered desire for revenge will be sufficient to draw the line in the right place, yet still allow sufficient flexibility for individual circumstances in particular cases, such as in the domestic violence cases that gave rise to that concern; but we want to allow sufficient flexibility for those matters to fall within the partial defence when appropriate. We want to prevent undeserving cases, in which there is a lapse of time between the trigger and the killing, from succeeding with that defence.

Time delays remain an important factor under the Bill. It will be open to the judge to decide whether to allow the jury to find for that defence, and for the jury to determine whether the elements of the defence are satisfied in taking account of any time delay between the trigger and the killing. If there is a significant time delay between a relevant instant and the killing, it might, depending on the facts of the case, completely undermine the claim that the defendant had killed following a loss of self-control. If those elements are made out, the partial defence is not made out. I think that we are coming from the same place with slightly different formulations. We all want to rule out unmeritorious cases. I hope that I have managed to reassure the hon. and learned Member for Harborough that the clause as drafted addresses those concerns. In addition, I hope that I have managed to raise some concerns in his mind about his formulation, but we will see if that is the case at a later stage.

Amendment 206 deals with gross provocation. If it were accepted, it would significantly affect the operation of the partial defence of loss of control in ways that we oppose. Gross provocation was the phrase originally used by the Law Commission in its proposals for reform, and I am sure that that has something to do with why the hon. and learned Gentleman has sought to reintroduce it using the amendment.

Edward Garnier (Conservative, Harborough)

As I think I made clear, it came from the evidence session, when the representative of the Criminal Bar Association came before us. Perhaps it is useful occasionally to listen to the evidence and try to adjust the Bill to reflect it. The hon. Member for Cambridge made a more important point about loss of control, which the Minister may well be coming to. That seems to be the lynchpin or lodestone of this discussion about provocation or loss of control.

Maria Eagle (Labour, Liverpool, Garston)

Of course, I accept that the witness said that in his introductory remarks, and I accept that that is where the hon. and learned Gentleman got the phraseology from—although it is fair to say that the Law Commission itself also originally used that formulation.

Amendment 206 would have the effect of adding a requirement that the defendant’s acts and omissions of doing or being a part of the killing resulted in a loss of self-control caused by gross provocation. In addition to the requirement that the loss of self-control had a qualifying trigger, gross provocation was originally the label used by the Law Commission and was obviously taken up by others who gave us evidence. In clause 42(4), we have reflected the partial defence relating to words and conduct.

The concerns we have about accepting amendment 206 relate to the effect of adding a new element to the test for both limbs of the partial defence. First, it is wholly unnecessary to have an additional test because the ground covered by the Law Commission’s gross provocation recommendation is already reflected in clause 42(4). An additional gross provocation requirement would complicate and confuse the test for the partial defence. Gross provocation relates to circumstances of an extremely grave character that caused D to have a justifiable sense of being seriously wronged—it is a different formulation of the same thing.

We do not believe that it is appropriate to apply a gross provocation requirement to the fear of serious violence in relation to partial defence because the whole purpose of creating that limb is specifically better to tailor the law in relation to cases in which people kill in fear. That is the whole purpose of the Law Commission’s original recommendations, about which we agree. Adding a gross provocation requirement would resurrect the situation that exists in law where killings committed in fear need to be shoehorned into a partial defence designed for killings committed in anger. Including gross provocation as a requirement will also make it significantly harder for a plea based on fear of serious violence to succeed. It would be inconsistent with the focus of the fear of serious violence limb, which is based on what the defendant feared in the future, rather than just what occurred in the past.

I expect that those from various places who suggested that the phraseology gross provocation should be included have a view in mind of returning to the better known language of provocation that we all learned at law school. However, the Government have undertaken to abolish a partial defence of provocation and replace it with a partial defence of loss of self-control for killing in response to the fear of serious violence and, only for use in exceptional circumstances, killing in response to words and conduct, which cause the defendant to have a justifiable sense of being seriously wronged.

Our public policy aim is therefore to change the way in which the partial defence works, but we will not do that by re-importing language that had a different meaning in the past. We therefore want to change the wording, and that is part of the reason why we do not want to accept amendment 206.

We want to raise the threshold so that killings in anger can justify a manslaughter conviction—that is, the partial defence succeeds—only in truly exceptional circumstances. Conversely, as the law is essentially designed to cater for anger killings, it is not sufficiently tailored to killings in response to fear. The present changes represent a significant shift in policy, which we do not want to undermine by reverting to language that would probably be interpreted differently. We think that the language that we have will work.

On amendment 207, concern has been expressed about the considered desire for revenge. The amendment would remove the word “considered” from the reference to “considered desire for revenge”. The effect would be to narrow the circumstances in which the partial defence of loss of control might succeed, so any situation in which the jury finds that there was a desire for revenge would be ruled out.

The Government are determined that cases in which revenge is the primary motivation for the killing should not benefit from the partial defence of loss of control. From what the hon. Member for Cambridge said, I think that he would accept that, and I am sure that the official Opposition would not want such killings to come within the ambit of the defence. That is one reason why they tabled amendment 207.

Edward Garnier (Conservative, Harborough)

I do not want to create dissent where there is no need for it, but I would like to have explained to me the point of using the word “considered” before the words “desire for revenge”. If someone kills someone else from a desire for revenge, they must presumably have gone through a thought process to bring them to that state of mind. The word “considered” simply allows people to think that there may be gradations of desire, which may not be what the Government intend.

Maria Eagle (Labour, Liverpool, Garston)

I understand the hon. and learned Gentleman’s point. Let me go back to the example that is usually quoted—that of slow-burn domestic abuse cases. There may be cases—for example, a long-term abusive relationship in which the abused partner finally kills—in which thoughts of revenge have crossed the defendant’s mind, but what prompted the killing was the fear of violence by the abusive partner, which resulted in a loss of control. Such cases should not be barred from raising the defence. By referring to a “considered” desire for revenge, we are trying to strike the right balance—barring thought-out revenge killings, without automatically excluding cases in which some thought of revenge may have passed through the mind of the abused partner in an abusive relationship, when a complex range of emotions is in play. Obviously, it will be down to the jury to determine whether the partial defence is made out and whether it should succeed on the facts of the case. However, that is what we are trying to get at, and I hope that that assists the hon. and learned Gentleman.

Edward Garnier (Conservative, Harborough)

Surely, what the Minister is after is a description of the dominant motive—it is the dominant motive that amounts to revenge in her example. It is not a question of the desire for revenge being “considered”. It is the predominant motive that dominated the defendant’s state of mind at the time that they killed.

Maria Eagle (Labour, Liverpool, Garston)

I understand the hon. and learned Gentleman’s point. The formulation in the Bill aims to ensure that any person who sets out to kill, where the main aim is revenge, is not able to gain the benefit of the partial defence. I am not sure that the hon. and learned Gentleman and I are a long way apart when he talks about a dominant motive, but amendment 207 would remove the word “considered” without including the words “dominant motive”. I will go away and think about whether we have got this right, but I do not think that we are 100 miles apart in trying to pitch the clause in the right place, and I shall consider his comments about dominant motives.

Amendments 170 and 171 deal with the burden of proof. When Professor Jeremy Horder, in his oral evidence to the Committee, suggested something along these lines, he appeared to be concerned about the assumption in clause 41(5) that the defence is satisfied unless proved otherwise by the prosecution. Professor Horder gave the example of a defendant seeking a full acquittal on the grounds of self-defence. He suggested that in such a case, the prosecution might be tempted not to rebut the defence, so that the defendant would be convicted of manslaughter, rather than found guilty of murder.

In considering that example, let us be clear about the purpose of subsection (5). All it does is clarify where the burden of proof lies when a partial defence of loss of control arises in a case. The subsection makes it clear that where sufficient evidence of the partial defence is adduced within the meaning of subsection (6), the burden rests on the prosecution to disprove the defence to the usual criminal standard of proof. The position reflected in the clause is commonly the position within criminal law. The same provision with respect to the burden of proof applies now to the partial defence of provocation, and the position is the same for self-defence.

Where there is sufficient evidence about those defences to raise an issue in relation to them, the burden falls on the prosecution to disprove the defence or else it will succeed. Clause 41(5), therefore, simply makes it clear that the usual principles apply in relation to the burden of proof in the new partial defence. Bearing in mind that we are abolishing the existing partial defence and replacing it with a new one, we consider that it is helpful, in the interests of clarity—everybody has been clear that they want us to pursue that—and certainty, to make it plain in the clause where the burden of proof lies.

Amendment 2 would change clause 41 so that the loss of control defence could be put to the jury only when the defence has raised it or, after someone else has raised it, where the defence wishes to rely on it. That links to our discussion on subsection (5) and would also be contrary to the usual position relating to defences within the criminal law where an evidential burden applies. As the hon. and learned Gentleman will be aware, the usual position is that judges should leave to the jury any such defence that the jury may reasonably find to apply on the evidence heard at the trial, regardless of who has adduced the evidence.

We do not think that there are sufficient grounds for departing from this position. The real problem with the current law that needs addressing—I think that the hon. and learned Gentleman referred to this when he moved his amendment—is that section 3 of the Homicide Act 1957 requires the judge to leave provocation to the jury where there is evidence that a person was provoked to lose their self-control, even where it would be perverse to say that a reasonable person would have reacted as the defendant did. Under clause 41(6), that situation is rectified and the judge will leave the partial defence to the jury only where they are satisfied that a properly directed jury could reasonably conclude that it might apply.

Edward Garnier (Conservative, Harborough)

Clause 41(2), to which the Minister referred, states that

“it does not matter whether or not the loss of control was sudden.”

Is that not the obverse of my argument about proximity? There is confusion in the Bill: if the loss of control does not have to be sudden, presumably it does not have to be proximate.

Maria Eagle (Labour, Liverpool, Garston)

No, the Bill does not state that it has to be proximate. The essential point, which I have obviously failed to convey to the Committee, is that the new partial defence will rule out unmeritorious cases without casting the matter in terms of suddenness. I have said that I shall consider the hon. and learned Gentleman’s comments.

Tim Boswell (Conservative, Daventry)

I have yet to make a contribution, because I have no legal competence in such matters. However, having listened to this discussion, it seems to me that, if the suddenness test fails, or is removed, and if the proximity test is also unavailable, or not explicit, it is difficult to see what test will be applied. Will she lead me through that one?

Maria Eagle (Labour, Liverpool, Garston)

I return to what I said at the beginning of my remarks, which is that we are recasting the partial defence so that we have a new one in which the defendant kills as a result of a loss of self-control attributable to a fear of serious violence, words or conduct that caused the defendant to have a justifiable sense of being seriously wronged and constituted circumstances of an extremely grave character; or a combination of those things. In that way, we put an appropriate boundary around the partial defence without having to refer to “proximity” or “suddenness”.

A sudden loss of self control is the way in which the old provocation and partial defence works. We are trying to get away from that and ensure that in the new partial defence, the fear of serious violence, which we and the Law Commission accept, is fairly dealt with. We want to make the partial defence resort less appropriate for anger. Therefore, we want to raise the bar in respect of anger killings.

In respect of killings on the basis of fear, we want to allow the defence to work in a way in which the wording of the old defence has not worked, although practice in the courts has been changing with common law developments.

Given the way in which the whole new partial defence is constructed, we do not believe that we need specifically to refer to proximity and time. However, I understand the concerns raised by both the hon. and learned Gentleman and the hon. Member for Cambridge that we could be allowing horrible revenge killings. I will consider whether we have got this right in view of our debate. None the less, I hope that I have made myself clear.

I am sympathetic to the policy aim of amendment 173. To determine whether things done or said caused the accused to have a justifiable sense of being seriously wronged, there should be an objective test, which answers the point raised by the hon. Member for Cambridge. That is why the clause states that the defendant should have

“a justifiable sense of being seriously wronged.”

The word “justifiable” makes the test objective. It would be subjective if it said, “He has a sense of being seriously wronged.” The word “justifiable” makes the test objective. We will hear at a later stage whether hon. Members accept that.

It is perfectly possible, however, that the jury accepts that the defendant had a sense of being seriously wronged, but when it applies the objective test, it may decide that that sense of being seriously wronged was not justifiable. That would cause the defence to fail at that hurdle.

Let us move swiftly on to amendments 416, 418 and 450

Jeremy Wright (Conservative, Rugby and Kenilworth)

Will the Minister comment on amendment 174 in light of what she has just said? There is a difference between “justifiable” and “justified”. In clause 42(6)(b), the word is “justified”. Given what the Minister has just said, should it not also say “justifiable”?

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman is very sharp and is spoiling the denouement to my speech. I will accept amendment 174. I happen to agree with what the hon. Members for Rugby and Kenilworth and for Cambridge have said, which is the end of my speech gone for a Burton. [Interruption.] I am keeping control because I remember what is at the end of my speech before I have got there.

Edward Garnier (Conservative, Harborough)

Has the Minister read the conclusion before the evidence?

Maria Eagle (Labour, Liverpool, Garston)

That is more usually the habit of the hon. and learned Gentleman. None the less, the Government cannot support amendments 416 and 418, which would make it possible for defendants to raise the partial defence of provocation in circumstances in which things said or done could give the defendant a justifiable sense of being wronged as opposed to a justifiable sense of being seriously wronged. Amendment 450 touches on the same point. The amendments would lower the threshold for the limb of the defence, which undermines the Government’s stated aim of narrowing the circumstances in which the partial defence could rely on the basis of things said or done. The Government are persuaded that the current defence is too generous to those who kill in anger. The clauses have been designed to address those concerns, and to raise, not lower, the bar, which is why we cannot support the amendments.

I want to discuss the sexual infidelity limb in clause 42(6) in more detail. I accept that where passions run high and where people feel a strong sense of having been wronged in close, personal relationships, it can be devastating for the individuals involved. But we do not believe, as a Government in the current day and age—whatever our personal views may be—that sexual infidelity ought to be sufficient reason to reduce a murder charge to a finding of manslaughter, when the resulting passion, concern and upset has led to killing with an intention to kill or to do serious harm. We are not trying to legislate away people’s natural and normal upset, concern and anger about those circumstances, but we do not accept that that itself ought to lead to reducing a murder finding.

The history of the partial defence of provocation has led to a commonly held belief that that defence can be abused by men who kill their wives out of sexual jealousy and revenge over infidelity. That erodes the confidence of the public in the fairness of the criminal justice system. Even accepting that a great deal has been done in recent years to address the problem and that pleas of provocation on the basis of sexual infidelity do not succeed as much as they used to, it is still true that under the current law that particular defence can be raised and may succeed. We want to make it clear that it is unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred. That deals in part with the general point about the entire partial defence. Homicide requires a killing with an intention to kill or to cause serious harm, and those who do that need to face the consequences, unless they have a very good reason.

Jeremy Wright (Conservative, Rugby and Kenilworth)

If I am about to spoil another line when the Minister tells us that she is not going to accept the amendment, I apologise now. I agree absolutely with her comment that sexual infidelity should not be sufficient to make out the defence that we are discussing, but clause 42(6)(c) states that

“the fact that a thing done or said constituted sexual infidelity is to be disregarded.”

Does she see the problem, which some have highlighted, that if the court were considering a case where the sexual infidelity in question involved sexual abuse, incest or something of that kind, it would be strange if the court were not able to consider the sexual infidelity aspect as part of the facts? That is even though it would be accepted that sexual infidelity in and of itself would not be sufficient to make out the defence. Is there not a difficulty with the word “disregarded” rather than, as she has said, using the word “insufficient”?

Maria Eagle (Labour, Liverpool, Garston)

There is some misunderstanding about our intentions in that respect. I am happy to look further at the wording—I am not promising to do anything about it, if I conclude that it is about as good as we can get—but if Committee members could suggest formulations that are clearer and that achieve our objective, then I would be more than happy to listen.

Edward Garnier (Conservative, Harborough)

The Minister does not have to listen; she just has to read amendment 111 on page 336, which covers the exact point made by my hon. Friend the Member for Rugby and Kenilworth.

Maria Eagle (Labour, Liverpool, Garston)

I am coming to that. I just wanted briefly to deal with the point about clause 42(6)(c), which talked about things done or said constituting sexual fidelity, about which the hon. Member for Cambridge was mystified earlier—members of the Committee are all very young, except me, and did not seem to understand the point about President Jimmy Carter; perhaps some of us have longer memories than others.

Using the words “done or said” makes it clear that subsection (6)(c) refers to clause 42(4)—the hon. Gentleman missed that. It may be difficult to know how things said would in and of themselves amount to sexual infidelity, but I understand the hon. Gentleman’s point. It is important to carry over the language used in clause 42(4) to ensure that anything that could be argued to fit into that subsection should be disregarded, if it constitutes sexual infidelity. Replicating the wording from subsection (4) guards against creating a loophole, whereby someone might seek to establish that clause 42(6)(c) was designed to allow sexual infidelity to be relied upon as a qualifying trigger, when it could be argued that something that was said constituted such infidelity. We must consider whether we are making things less clear by having consistency of language. We could just accept an amendment to keep the language consistent, and I am perfectly happy to consider whether we have got the matter right.

Amendment 111 seems to be directed at allowing sexual infidelity to be considered when relevant, but only if it is not

“a thing or things done or said”

that is relied on as a qualifying trigger under clause 42(4) for the loss of self-control. That subsection is the qualifying trigger that arises when a person’s

“loss of self-control was attributable to a thing or things done or said...which”

amounted to

“circumstances of an extremely grave character, and”

caused the defendant

“to have a justifiable sense of being seriously wronged.”

I am assuming that what I have just said about the purpose of the amendment is right. We do not have a problem with the reasoning, but we think that the current drafting covers the point.

Edward Garnier (Conservative, Harborough)

To be honest, I can see that hon. Members want their lunch shortly, but the point that my hon. Friend the Member for Rugby and Kenilworth made needs to be answered. I anticipate the Court of Appeal being inventive and reading into clause 42(6)(c) the substance of amendment 111 simply because the provision will otherwise produce unjust results. A straightforward example is a stepfather who rapes a stepdaughter, which would prevent the partial defence being given to the wife in those circumstances. We must be very careful before rushing down the path of paragraph (c).

Maria Eagle (Labour, Liverpool, Garston)

I understand that concern. The amendment is unnecessary, because the current drafting covers the sort of situation to which the hon. Gentleman has referred, but I am happy to reflect further on the matter. We believe that we are covering the same ground with the current wording, so I will not undertake to accept the amendment, but I will undertake to go away and consider it.

Amendment 176 refers to honour killings. Such cases involve individuals who seem to have transgressed the dictates, perceived or real, of a religion or community, or the mores of society or family by, for example, engaging in a relationship that is not approved of or marrying someone whom they should not marry according to their family. In response to the transgression, they are killed for bringing dishonour to their family or wider community. We all agree that such cases should not be allowed to benefit from the partial defence, but the clause does enough to exclude such cases.

First, the fact that

“thing or things done or said (or both)”,

which triggered the loss of self-control must have

“constituted circumstances of an extremely grave character, and...caused...a justifiable sense of being seriously wronged.”

The test is objective, not subjective. Secondly, the jury must be satisfied of the reasonableness requirement in clause 41(1)(c) that

“a person...with a normal degree of tolerance...might have reacted in the same way or in similar way”

as the defendant. Thirdly, the defence is not available if the defendant acted in a considered desire for revenge. We believe that, when taken together, those factors should always have the effect of preventing the defence from succeeding in cases of honour killings.

There is an issue about defining honour killings. It is much easier to define sexual infidelity, say, than honour killings. Honour killing is not easy to define. We do not believe that the phrase “violation of a code of honour” is sufficiently precise. We think that the current wording deals with the point, and we all agree that we do not want to allow honour killings to sneak into the partial defence.

Amendment 417 is contrary to the Government’s aim of preventing people from relying on the partial defence, if the qualifying trigger was caused by something that the defendant incited another person to do or say in order to give them a reason for using violence. We touched on that earlier. We do not want it to be possible for the defendant to use things said—for example, verbal threats—as the basis for their fear of serious violence. That is to rule out things such as gang killings. I hope that hon. Members understand that.

For example, person X is a member of a gang who wants to attack person Y, who is a member of another gang. Person X shouts verbal abuse at person Y in the street with the intention of drawing him into an altercation. When person Y responds with verbal threats of extreme violence, person X attacks and kills him. We do not want person X to seek to rely on the partial defence on the basis that he feared serious violence from person Y, when he had provoked it in the first place through the verbal threats with an intention of creating the altercation. That is the point of the provision.

We have dealt with the “done or said” point. I have accepted amendment 174—hurrah. On that basis and with many apologies for the length of time that I have taken to deal with these matters, I hope that the hon. Member for Cambridge will consider withdrawing the amendment, which is not the one that the Government have accepted.

David Howarth (Liberal Democrat, Cambridge)

On the basis of what the Minister has said, I will seek leave to withdraw amendment 168, but will move amendment 174 formally. I thank her for her remarks on honour killings. I hope that she is right and that what we are doing has the effect that she says. There are, of course, the classical problems of interpreting what clause 41(1)(c) says and the degree to which particular mores and groups will come into the definition of “normal”, but I assure her that we all agree with the intention of what she has said.

I also thank the Minister for what she said about going away and thinking about other aspects of the drafting. There is a broader consensus than previously imagined on what we are trying to do, but there are some difficulties in how it is being done. I shall go away and think about her procedural explanation of amendments 170 and 171, and I hope that she is right. There is a problem of putting into a statute something that is already the law, because it makes lawyers think that it means something else, which is always a difficulty.

My overall conclusion is that there is a problem of treating the fear defence and the anger defence with the same basic concepts. I do not think that loss of control should come into the fear defence at all, because it has nothing to do with the fear argument. On the anger part of the problem, loss of control is not enough. Simply losing control of oneself because one is angry should not be a defence, whereas in the fear part of the clause, it seems to me to be irrelevant.

Edward Garnier (Conservative, Harborough)

Is it the distinction between an external influence and an internal influence?

David Howarth (Liberal Democrat, Cambridge)

It is partly that, but it is actually the quality of the emotion concerned. I think that the fear cases and anger cases are so different that they should be treated with different defences.

I beg to ask leave to withdraw the amendment.

Clause 42

Clause 46

Edward Garnier (Conservative, Harborough)

I beg to move amendment 9, in clause 46, page 27, line 7, leave out

‘capable of encouraging or assisting’

and insert ‘that encourages or assists’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: amendment 178, in clause 46, page 27, line 7, leave out ‘or assisting’.

Amendment 179, in clause 46, page 27, line 9, leave out ‘or assist’.

Amendment 422, in clause 46, page 27, leave out lines 11 and 12.

Amendment 10, in clause 46, page 27, line 24, leave out

‘is capable of encouraging or assisting’

and insert ‘that encourages or assists’.

Amendment 180, in clause 46, page 27, line 25, leave out ‘or assisting’.

Amendment 423, in clause 46, page 27, leave out lines 28 to 33.

Amendment 181, in clause 46, page 27, line 28, leave out ‘or assisting’.

Clause stand part.

Amendment 12, in clause 47, page 28, line 6, leave out

‘capable of encouraging or assisting’

and insert ‘that encourages or assists’.

Amendment 424, in clause 47, page 28, leave out lines 10 and 11.

Amendment 13, in clause 47, page 28, line 23, leave out

‘is capable of encouraging or assisting’

and insert ‘encourages or assists’.

Amendment 425, in clause 47, page 28, leave out lines 27 to 32.

Clause 47 stand part.

Clause 48 stand part.

Amendment 14, in schedule 10, page 140, line 15, leave out

‘is capable of encouraging or assisting’

and insert ‘encourages or assists’.

Amendment 184, in schedule 10, page 140, line 15, leave out ‘or assisting’.

Amendment 15, in schedule 10, page 140, line 34, leave out

‘is capable of encouraging or assisting’

and insert ‘encourages or assists’.

Amendment 185, in schedule 10, page 140, line 35, leave out ‘or assisting’.

Amendment 186, in schedule 10, page 140, line 36, leave out ‘or assist’.

Amendment 16, in schedule 10, page 142, line 31, leave out from ‘information’ to end of line 33 and insert

‘encouraged or assisted suicide or an attempt at suicide, and was provided with that intention, or’.

Schedule 10 stand part.

Edward Garnier (Conservative, Harborough)

Once again, I make my formal complaint that such a huge issue has been spatchcocked into the Bill. If we are to do the subject justice, it should be treated in a separate Bill amending, if necessary, the Suicide Act 1961. However, as I may have said before, we are where we are, and we have to do the best we can, albeit with a very unsatisfactory process for dealing with a highly sensitive and legally complicated subject.

Clause 46 deals with encouraging or assisting suicide in the jurisdiction of England and Wales, and it is fair to say that clause 47 produces a similar regime for Northern Ireland. Clause 48 deals with information society services, the bulk of which are dealt with by schedule 10.

Tim Boswell (Conservative, Daventry)

On a point of order, Mr. Gale, your colleague—Mr. Cook—arranged for the room to be left at 1 o’clock, when we broke. This is a trivial point—I am not getting at anyone—but my papers have been moved, and I found them in a different place. That should not happen, and I hope that it will be noted, although I have no wish to pursue any individual. I am as near as certain that I did not move them myself, so somebody must have swept them up and repositioned them. It is important that that does not happen again. Forgive me for raising that matter, Mr. Gale, but I thought it would be more appropriate if I did so immediately, without disturbing the flow of my hon. and learned Friend’s argument.

Roger Gale (Conservative, North Thanet)

The authorities will have heard the hon. Gentleman’s comments, and I am sure that it will not happen again, but I thank him for drawing the matter to our attention.

Edward Garnier (Conservative, Harborough)

Amendment 9 is similar to a number of other amendments in the group. It deals partly with a matter of English, but also provides the Government with an opportunity to explain with clarity what they intend to convey by the sections and subsections that contain the words

“capable of encouraging or assisting”.

Clause 46(2) provides that the Suicide Act be amended as follows:

“A person (“D”) commits an offence if...D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and...D’s act was intended to encourage or assist suicide or an attempt at suicide.”

It is clear from the amendment paper that we would substitute

“capable of encouraging or assisting”

with “that encourages or assists”, so that it covers a situation in which D does an act that encourages or assists. It may be a difference only of emphasis or of style, but I can only assume that the Government used the expression

“capable of encouraging or assisting”

for a reason, although I gather from the evidence sessions that it is not an unusual form of parliamentary drafting. From memory, I think that it has appeared in other legislation. I do not know about that, but we need to know more about what is behind the Government’s thinking. It is an unhappy expression, when dealing with such matters. For the criminal law to be clear, we need to make the English language suitably clear. As the clauses are drafted, there is an absence of clarity, which makes it difficult to divine precisely what would constitute the offence.

Amendment 422 would remove proposed new subsection (1A), which states that the

“person referred to in subsection (1)(a)”—

someone who does an act that is capable of encouraging or assisting the suicide—

“need not be a specific person (or class of persons) known to, or identified by, D.”

We want simply to tease out from the Government what they mean by that, or to know at whom the provision is directed. Sadly, many people are injured or killed by people they do not know. Many people who commit a criminal act cause injuries or even death to people they do not know, so it is not necessary for the individuals to be known to each other or to be identified by the person committing the criminal act. However, we need to be clear about the purpose of proposed new subsection (1A). To whom is it directed and what hole or lacuna in the law is it intended to correct?

Amendment 10 makes a further encouraging or assisting point. Amendment 423 deals with a proposed new section in the Suicide Act 1961 headed:

“Acts capable of encouraging or assisting”.

The provision suffers from the same imprecise language that I identified earlier. Proposed new section 2A(2) states:

“Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of this Act it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events appeared in the manner D believed they would happen (or both).”

I can imagine the joy of the judge when summing up such matters to the jury. The provision is so dense as to be almost incomprehensible. I assume that the draftsmen of the Bill and the Government are attempting to make it permissible to prosecute someone for attempting the impossible. If that is what they are attempting to do, why do they not say so? The provision is almost impenetrable. If we are to adjust the law on encouraging or assisting suicide, it should be done in the clearest possible terms.

Amendment 425 covers the same point in the clause relating to Northern Ireland. Amendment 13 is another encouraging or assisting argument, so I shall not detain the Committee. Amendments 14 and 15 are in exactly that category as well.

We are looking at how the clauses fit into the Bill, with their intrinsic merits or demerits, as well as into the context outside, where a number of difficult cases have been in the public eye and tested in the courts. A case that has just left the Court of Appeal, with the Lord Chief Justice as president, involved a wife appealing from the court below—I am afraid I cannot remember her name, which is very rude of me; although it does not matter, if she and her husband will forgive me—

Brian Iddon (Labour, Bolton South East)

Purdy.

Edward Garnier (Conservative, Harborough)

Mrs. Purdy originally applied to the High Court over something that might have led her husband into trouble with the criminal law under section 2 of the Suicide Act 1961. In essence, she wanted to be a given a free pass so that her husband could escort her to Switzerland when the time came to take her own life. She was fearful that he would be prosecuted for encouraging or assisting her in that potentially criminal act.

The High Court refused to decide the matter in a vacuum, as a matter of hypothesis, and the case was appealed. The Lord Chief Justice and his fellow judges in the Court of Appeal agreed with the High Court. I hope that I do not misinterpret what I think was the Lord Chief Justice’s observation, which was not part of what we call the ratio decidendi—I thought the Minister would enjoy that. He observed at the end that no matter what the law is, it was unlikely that the courts would give a custodial sentence if someone was prosecuted in similar circumstances to Mrs. Purdy and her husband.

What the Lord Chief Justice said is clearly not binding on a sentencer, because in cases of that nature a sentencer has to look at the facts of the case. However, it was an interesting indication of how he was thinking and it certainly married with what the Director of Public Prosecutions, Mr. Keir Starma, did in the case of the youngster aged 21, 22 or 23 who had severe injuries from a rugby game—

Maria Eagle (Labour, Liverpool, Garston)

Daniel James.

Edward Garnier (Conservative, Harborough)

That is right. I thank the Minister. Daniel James’s parents took him to Switzerland, where he died, and the DPP decided that it was not in the public interest for them to be prosecuted under the 1961 Act.

Personally, I happen to agree with what the DPP said and did—although that will not make his life any easier or make any difference to it. However, there is an advantage in what I would call a pragmatic English muddle. The more we tighten up this aspect of the criminal law, the more likely it will lead to prosecutions where many people do not want them or, possibly, to an absence of prosecutions where people want them. Although many may think the law untidy and unsatisfactory—this is not a party political issue or a matter on which my party is whipped—I prefer the approach that the DPP took of his own accord in deciding in the James matter not to prosecute. Again personally and not on behalf of my party, I applaud the Lord Chief Justice, Lord Judge, for adding his observations in the Purdy case.

I only hope that by cramming clauses 46 to 48 into the Bill, and having only a short discussion on them, we do not do more harm than good and make a lot of people more upset with what we achieve in the legislation. I leave my comments there, because I do not intend to press the matter to a vote—I simply wanted to provoke a discussion. If we can have one, and inform the other place, it can then inform us what it thinks about the clauses, so it may be that despite the unsatisfactory process that we are going through, some good may come of it. Currently, I am not convinced that what we are doing as a matter of process—forget the substantive law—is a sensible way forward.

David Howarth (Liberal Democrat, Cambridge)

I agree with a great deal of the hon. and learned Gentleman’s comments, especially on the question of how to deal with issues that are so important and sensitive. I regret that the matter, which should be dealt with by itself in a separate Bill, has come up in the middle of a catch-all piece of legislation. It seems to be the perfect example of where there should be a private Member’s Bill, which should be given Government time to ensure that it cannot be blocked by the usual Friday tactics, where hon. Members on both sides have a proper discussion about where the law, in this particular area, should be going.

There are two areas that I want to mention. The first is the problems that seem to arise regarding how the clauses have been drafted, and there are number of difficulties, especially the concerns that Samaritans has put forward about the effect that that might have on teenagers. Secondly, I acknowledge openly that the Bill puts in play the whole area of assisted suicide. I suspect that that matter will dominate the Report stage, which some of us—on both sides of the debate about assisted suicide—might regret. Therefore I do not think that that is a satisfactory way of resolving this particular sort of issue.

Maria Eagle (Labour, Liverpool, Garston)

Given that what we are discussing is in part a criminal law reform Bill, it would be within its scope whether or not there are no provisions in the Bill that relate to the Suicide Act 1961 itself.

David Howarth (Liberal Democrat, Cambridge)

I do not want to anticipate what the House authorities might decide in that kind of case—it depends on what is in the Bill. But it seems that any questions about that issue, one way or the other, are put entirely beyond doubt because the Bill contains the clauses.

I start with the problems with the clauses as they are drafted. As the hon. and learned Member for Harborough said, there is a question about whether the clauses broaden the scope of the existing law in a way that goes beyond the Government’s intentions. The Government say that the purpose is not to change the law in any radical way, to leave it as it is, but to modernise it—we are back to that word from this morning. That is a dangerous thing to do, in my view: to modernise for the sake of modernising. There are concerns that the draft goes well beyond simply modernising the language of the law. The hon. and learned Gentleman mentioned the Purdy case, the technicalities of which are about the extent to which the courts can intervene early in the process. The question there, which is separate from the content of the law, is whether the DPP should be thought of as having some sort of dispensing power in respect of the law. Beyond that point there is the question of the content of the law itself. A number of organisations are concerned that the Government intend to ensure that the law is broadened in such a way as to make the Purdy case impossible on the facts—the merits and the substance—of the law, rather than simply on the technicalities in respect of what the powers of the court might be.

Liberty has expressed a concern that one of the effects of the Bill might be to make more vulnerable to prosecution the friends and family members of those who help loved ones go overseas for assisted suicide. I should like to hear the Minister’s view about whether the clause is intended to change the law on that specific question.

Maria Eagle (Labour, Liverpool, Garston)

No.

David Howarth (Liberal Democrat, Cambridge)

I am glad to hear it and I am sure that a lot of people around the country are glad to hear it, too.

The clause takes away the need for the specific targeting of a particular person to encourage or assist in committing suicide. That relates to an issue that Samaritans has raised. As the parent of recently teenage boys, I find this a difficult but important issue. We cannot pass legislation for symbolic or political reasons and then find that it has awful side effects. Samaritans has said:

“we feel that it is important to ensure that action can be taken against individuals who maliciously target vulnerable people...in this way.”

I am sure that all Committee members agree with that and, in parenthesis, I am sure that we all agree that suicide websites that encourage suicide are to be deplored. Samaritans’ brief continues:

“However, we also feel that it is important to safeguard against criminalising vulnerable people in a state of emotional distress who openly discuss suicide related matters, including suicide methods, on the internet. Samaritans believes that allowing people to explore suicidal thoughts and feelings alleviates distress and helps people to reach a better understanding of their situation and the options open to them. The Government has stated that the update to the language of the Suicide Act does not change the scope of the existing law and the Director for Public Prosecutions appeared to concur with this when giving evidence”

before the Committee.

“Yet the stated position on the circumstances under which an individual can be prosecuted for such offences online now appears inconsistent in part and therefore we seek clarification on the legal implications for emotionally vulnerable people who discuss suicide on the internet.”

I am sure that the Minister has already noted this point and I hope that she will be able to give the Committee the assurances that Samaritans seeks and will say that the clause will not—not even by accident—change the position so that a teenager is unable to discuss their problems.

James Gray (Conservative, North Wiltshire)

The hon. Gentleman is making an extremely interesting point. One might argue that people of a vulnerable nature, of the kind he is discussing, should be allowed to discuss their suicidal feelings on the internet. However, how would he feel if those with unnatural tendencies towards children were allowed to discuss those tendencies on the internet in the same way? Does he not agree that child pornography sites should be banned from the internet, even if it prevents those people from discussing their feelings?

David Howarth (Liberal Democrat, Cambridge)

That is an entirely different case relating to harm to other people. I speak as a parent of teenage boys; for me, this is not just about politics, but about what will happen to many young men in those circumstances. I seek an assurance that the Government have taken into account that point. If they think that it will cause problems of the sort that Samaritans highlighted, will they introduce some adjustments? There are other problems with the Bill: the hon. and learned Gentleman made the point about an impossible attempt, which needs to be considered. However, in substance, that is nowhere near as important as the point raised by Samaritans.

On the general issue of assisted suicide, we proposed a series of amendments purely on a probing basis. We have no intention of pressing them to a vote. They would simply remove every “assisted” in the clause, but leave “encouraging” as a crime. What do the Government think is the difference between the two and the extent to which “or assisting” adds to “encouraging”? I think that we all agree that encouraging suicide is wrong, but then the question arises of what is assisting suicide in such circumstances. That puts on the agenda the question of the legality of assisting suicide itself.

George Howarth (Labour, Knowsley North and Sefton East)

Surely the difference is that to encourage suicide is to contribute towards the decision, whereas assistance follows the decision.

David Howarth (Liberal Democrat, Cambridge)

That is precisely my interpretation. Encouragement takes place before a decision and pushes them in one direction, which is wrong and should never be allowed. In my view, assistance takes place after a decision has been taken. Then the question arises of whether that should be illegal in the same way, but it is a separate question.

I would like to explain the Liberal Democrats’ position. In any given year, throughout the country, fairly substantial numbers of people are assisted in dying by medical practitioners of various sorts. Medical practitioners are frank about that, although they will keep identities out of the picture. The question is whether it is right to go along with the English muddle that the hon. and learned Gentleman mentioned, which I confess has some attractions, or whether we should be more open and honest about the situation.

Brian Iddon (Labour, Bolton South East)

I shall declare my interest in this debate straight away. I am patron of an organisation called Alert, which researches euthanasia and assisted suicide, and provides me with much information in that direction. I am also chairman of a national organisation called, Care Not Killing, which opposes all forms of euthanasia, including assisted suicide. I have heard anecdotal stories about doctors bumping people off. A number of organisations have carried out research that does not support what the hon. Gentleman has said this afternoon.

David Howarth (Liberal Democrat, Cambridge)

I am talking about what medical practitioners and academic medical researchers have told me of their own experiences. Yes, in terms of research there are differences of view about numbers and so on, but my point is that doctors have said this to me on various occasions over the past 25 years. This is not a fantasy, although there might be some discussion about the extent to which it happens.

Maria Eagle (Labour, Liverpool, Garston)

There is, of course, a difference between doctors hastening death with the intention to alleviate suffering by administering painkilling medication, for example, and them “bumping people off”, as my hon. Friend the Member for Bolton, South-East put it. Perhaps the hon. Gentleman has had discussions about the former rather than the latter case.

David Howarth (Liberal Democrat, Cambridge)

The correct answer to that is that perhaps they were, perhaps they were not. I know what I heard.

Brian Iddon (Labour, Bolton South East)

I want to dispel the myth that people can be killed by increased doses of morphinoid painkillers. That is not the case. Research shows that giving increased doses of morphine, or even heroin, can kill more of the pain but not the patient. When that intense pain appears, the patient is in such a terrible condition that they die anyhow.

David Howarth (Liberal Democrat, Cambridge)

Unlike the hon. Gentleman, I am not a chemist. I accept what he says.

Let me put on the record the position of the Liberal Democrats. We believe that there should be high-quality palliative care and far more support for carers. However, we believe that the legislative framework should change at least in some cases. Sometimes our official position is characterised as pro-euthanasia, but it is not—I would certainly not stand here and support euthanasia. We are not even in favour of assisted suicide in all cases, rather we are in favour of medically assisted dying in cases of terminal illness or severe, incurable, progressive physical illness where patients are without hope of recovery. That is similar to the case mentioned by the hon. Gentleman.

In those cases, doctors should be able to provide competent adults with assistance to die if they have expressed the wish to do so within very narrowly defined circumstances. Those include being able to demonstrate to a medical practitioner and an independent person that the request to die is voluntary, well-considered, persistent and motivated by existing or inevitable unbearable suffering. The request must be made in writing after full discussions about what is available in terms of palliative care. It must be counter-signed by legal practitioners as well as medical practitioners and must be repeated after a period of time. Other safeguards could be imagined and brought forward.

My party believes that that would respond to the real suffering of real families in the real world. Some members of the Committee might find this typical, but I should add that the motion passed in 2004 stated, as its final line, that Liberal Democrat parliamentarians should have a free vote on this issue.

Maria Eagle (Labour, Liverpool, Garston)

Typical.

David Howarth (Liberal Democrat, Cambridge)

As the Minister says, typical. Nevertheless, it is party policy and as the party spokesman in this area it is my duty to put it on the record.

James Gray (Conservative, North Wiltshire)

First, I apologise for arriving late. I simply lost track of the time. In particular, I apologise to my hon. and learned Friend the Member for Harborough whose remarks I missed. I particularly regret that because I am just about to disagree with what I imagine he said.

This is a particularly awkward group of amendments. It brings together two extremely important and two extremely difficult matters as if they were the same debate. As I said, I will disagree with what my hon. and learned Friend said, and, from a personal standpoint, with what the hon. Member for Cambridge said a moment ago. He and I could not differ more on the particular matter of assisted suicide, but that is not the most important part of my comments in today’s debate.

Madeleine Moon (Labour, Bridgend)

Does the hon. Gentleman agree that it might be helpful in this debate to differentiate between assisted suicide—that is assisting young, fit, healthy people to terminate their lives—and assisted dying to help those with a terminal illness or those who are in great pain? If we could differentiate between the two it might help to clarify the debate.

James Gray (Conservative, North Wiltshire)

The hon. Lady makes an extremely good point. Her circumstances in the Bridgend constituency are quite different from those discussed by the hon. Member for Cambridge. Within the context of internet-assisted suicides, there are two categories to discuss. One led to the case in Bridgend in which Facebook and similar social sites assisted or encouraged suicide. That is quite different from the sort of suicide I will be discussing in one moment.

Tim Boswell (Conservative, Daventry)

Following the remarks of the hon. Member for Bridgend, does my hon. Friend not agree that one of the difficulties that we face operationally is that while there are two different categories—she is right to remind the Committee of that—there is only one law on suicide. That would suggest a certain reticence about modifying that law and not, in effect, leaving a degree of flexibility in its interpretation to experts in the medical profession in relation to assisted dying, rather than seeking to codify everything in a way that meets one need at the expense of intensifying a problem elsewhere.

James Gray (Conservative, North Wiltshire)

We are getting into the meat of the discussion and mixing up two different types of category. I want to avoid that and seek to address them separately.

Sharp-eyed members of the Committee will have noticed that my name was down against amendment 9, until I asked for it to be removed. Amendments 9, 422 and so on remove the expression

“capable of encouraging or assisting the suicide”

and replace them with

“that encourages or assists the suicide”.

My hon. and learned Friend tabled the amendments as probing amendments, but they seem to do exactly the opposite with regard to the Bill. I feel strongly about the matter, which is why I volunteered to serve in Committee. I had two constituency cases involving young teenagers, both of whom killed themselves in particularly unpleasant ways thanks to the use of the internet. I then became involved with the organisation Papyrus, and I pay tribute to the work that it has done. It discovered that 46 suicides carried out by teenagers were aided by these extraordinarily vicious and nasty websites.

I will not name those sites, because I do not want to encourage people to access them. If any hon. Member were to type into Google, “How to kill yourself”, the material that would flash up on to the screen is simply disgusting—it is the most vicious and nasty stuff that I have ever come across. Without disturbing the Committee too much, I want to share a couple of brief examples, such as:

“‘Tie piano wire around your neck and jump from a high height. Your momentum will cause you to be decapitated before you hit bottom’, says one entry. Other failed suicide cases argue that because both self-drowning and shooting can go wrong—in a drowning ‘the body will fight to breathe’, and some gunshots ‘miss the brain altogether, taking out both eyes but leaving you alive’—it is best to stand in a river and then shoot yourself”.

Others give details of precisely which concoction of pills a person should take. Some websites talk about alcohol. One is headlined:

“How to Kill Yourself Using Inhalation of Carbon Monoxide Gas”.

and shows pictures of how to do it.

There are about 30 or 40 pages of material that go through all possible ways for people to kill themselves in huge detail. The descriptions are immense, graphic and revolting. The sites tend to be accessed neither by those whom we were talking about a moment ago nor necessarily by intelligent and sensible people. They tend to be accessed by teenagers, who are often suffering from depression. The teenagers go on to the web, look up the sites and can carry out their suicides within a few moments of deciding to do so. If they had to find such material in the library, they might get over the immediate instinct of wanting to act in such a way.

We know of 46 cases of teenagers who have killed themselves as a result of such sites and no doubt many more have not been reported to Papyrus. Along with other organisations, it has been discussing with the Government what can be done to stop such sites for a long time. Most sensible people agree that such sites must be stopped. The matter is complicated by the fact that most sites are based overseas and that the British Government cannot dictate to overseas Governments what they should do in their criminal law, although there is the argument that if we outlaw certain things in this country, other civilised nations will follow. Australia and Japan have made notable efforts to stop suicide websites.

The Government have attempted under clauses 46 to 48 to achieve something, albeit not as perfectly as we would have liked. They have openly said that the provision is more or less a modernisation of the Suicide Act 1961 and that it does not introduce a new offence or a new way of stopping the sites, but that it clarifies the intent behind the 1961 Act with particular reference to what can be done using the internet.

I want the Government to take further action. The two clauses do not go quite far enough, although I readily accept the difficulties that they are labouring under. I want to explore whether the offence would bear extradition from overseas countries with which we have extradition treaties. After all, if we are to send people to prison for 14 years if sites take place onshore, why should British people in overseas countries not be treated similarly? Extradition is one area that we should explore.

How the internet service providers supply such material is another area that is well worth exploration. It may even be that today’s debate and the knowledge that the Bill will become law will encourage ISPs to find ways of taking down such sites—if they know that a site is illegal in the United Kingdom, I hope that they are encouraged to act. The Bill does not go far enough, but I welcome the two clauses, which are a definite move in the right direction. The Government have acted: they have listened to those who suffer from such activity and are seeking to find a way in which to get the sites stopped.

Bearing in mind that the aim behind the clauses is to stop the disgraceful sites, examples of which I have given, the problem with the amendments tabled by my hon. and learned Friend is that they would weaken the ability of the courts to take such action. The Government are seeking to tighten up the Suicide Act 1961, which currently prohibits actions by

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide”.

That form of words is out of date, and it has been updated by the two clauses. The Government propose to replace the offence of aiding, abetting, counselling or procuring the suicide of a person with an offence relating to acts that are

“capable of encouraging or assisting suicide”.

The amendments tabled by my hon. and learned Friend the Member for Harborough would change “capable of” encouraging or assisting suicide to actually encouraging or assisting. The difficulty, if some sick-minded person somewhere or other around Britain is creating such vile websites, is proving that they assisted a person to commit suicide. It would be necessary for there to be a suicide and for there to be a direct causal link between that suicide and the web. It is almost impossible to imagine any circumstance in which a particular suicide could be linked to a particular internet site. That is why my hon. and learned Friend’s amendment weakens the intent behind the Bill as drafted by the Government.

Whether or not it can be proved that such a site resulted in a suicide, if someone creates such sites, the intention is clearly to encourage people to commit suicide. Even if that intention cannot be demonstrated, none the less the person is guilty of a very grave offence, which is subject to a 14-year prison sentence.

The hon. Member for Cambridge has said that there is a risk, and I entirely sympathise with what the Samaritans has said. The risk is that there are some worthwhile sites that allow teenagers to discuss their suicidal feelings. For example, parents might send messages to children saying, “Please don’t commit suicide”. There are circumstances in which suicide could be discussed on the internet, and we would not want the Bill to interfere with the perfectly good sites that the hon. Gentleman has mentioned. However, as drafted, the Bill makes it absolutely plain that the people who create such sites with the intention of assisting people to commit suicide are committing a heinous criminal offence and will be prosecuted and go to prison for up to 14 years. That is entirely laudable, so I very much support the two clauses proposed by the Government and, sadly, disagree with my hon. and learned Friend’s amendments.

Before I move on, only one case so far has come to court. A gentleman called Gary Howes was involved in encouraging suicide by e-mail, which is similar, if not identical, to a website. He was acquitted, because under existing legislation it was not possible to prove intent. He sent people e-mails telling them how to commit suicide; it is believed that they committed suicide as a result, but the court could not prove that Gary Howes’s intent was for them to commit suicide. The clauses are good, because it is not necessary to prove intent. In particular—this is an area in which the courts have got in a muddle before—one does not have to prove that people met face to face. At the moment, one must demonstrate that the person carrying out the offence and the person committing suicide have met face to face—therefore the attempt is proven. The clauses remove the necessity of meeting face to face and proving intent.

I broadly welcome the intention behind clauses 46 to 48, although they do not go far enough. The Government have expressed their intention elsewhere of working with ISPs, Papyrus and other organisations—there is a good all-party group on suicide prevention in this place. The Government’s intention to stop internet-assisted suicide is right, although they will probably not be able to do it in the context of the Bill. However, I welcome their intent and will work with them in any way that I can.

Turning briefly to the Liberal Democrat amendments, it is unfortunate that the extremely laudable intent behind clauses 46 to 48 has been muddled with the highly controversial and difficult issue of assisted suicide. The two things are entirely different, and it is unfortunate for them to be somehow linked together. I speak here from a particular ethical standpoint—I agree with the hon. Member for Bolton, South-East and the organisation for which he is patron and chairman. I am fundamentally and ethically opposed to all forms of euthanasia and of encouraging death, and I am totally opposed to the notion of assisted suicide, so I wholly agree with his standpoint. However, I readily accept that such matters are difficult, delicate and complex. Some people will have different views—it is right that the issue involves a free vote—but my stance is wholly opposed to what the hon. Member for Cambridge has proposed.

I do not think it right to extend the debate on those delicate matters here this afternoon, because to do so would fall into the very trap that the Liberal Democrats have set for us. The purpose of the Bill is to focus on internet-assisted suicide, not to get involved in the difficult issue of euthanasia. Having glanced at the long title of the Bill, I am amazed that the notion of assisted suicide is allowed to be discussed. I am not for a second questioning your judgment, Mr. Gale, but it seems to be a diversion away from the intention of the Bill.

David Howarth (Liberal Democrat, Cambridge)

The simple fact is that the clause reforms the whole law on assisting suicide. It does not merely change the law about suicide websites. The Government could easily have come up with a specific proposal covering that, but they chose not to do so. I said at the start of my comments that I was worried about that.

James Gray (Conservative, North Wiltshire)

The hon. Gentleman seems to be implying that the Government somehow intended to open up the difficult matter of assisted suicide by introducing these clauses. I do not think that that is right, and having been involved in discussions with them for many years on internet-assisted suicide, I know that they have introduced them for precisely the right reasons. I suspect that those who are in favour of euthanasia have taken this opportunity to divert a perfectly laudable clause into a different debate. I will not take part in that debate. I happen to disagree fundamentally with the hon. Gentleman, and all my life I have been totally opposed to any form of euthanasia, but I shall not give into temptation by seeking a debate on the matter this afternoon.

We should welcome clauses 46 to 48. I know that other hon. Members want to speak—the hon. Member for Bridgend probably wants to do so—so it would be wrong to extend the debate into that area, but it is extremely regrettable that the long title allows the matter to be discussed. I hope that the hon. Member for Cambridge is wrong and that the issue does not become the main topic of debate when the Bill returns to the Floor of the House, which would be quite wrong. The Government’s proposals in clauses 46 to 48 are laudable, and I hope that they become law.

Madeleine Moon (Labour, Bridgend)

The early drafts of the Bill addressed a major problem relating to suicide, media reporting. Numerous, well-documented research papers in the UK and Australia show that high-profile, disproportionate reporting has added to the number of people taking their own lives. If suicide is portrayed on TV programmes and in press reporting as being normal or even attractive, it can move people towards seeing suicide as a solution to their problems. Such portrayal can lead to social contagion, which can lead to further suicides, and specific information on methods, which can generate additional use of those methods.

The editors’ code of practice is about to be revised. I saw an advance, embargoed copy of it today, and it will be released on 9 March. The Press Complaints Commission has considered modifying the way in which suicide is reported, and it accepts that inappropriate reporting and information may add to the risk of people in a vulnerable state of mind taking their lives. I am sorry that the Government have not provided the opportunity in the Bill to consider that, and I am particularly disappointed that they have not given coroners the power to exclude the media from reporting the death of young people under the age of 16. Sadly, we have lowered the bar on privacy in the coroners’ courts when it comes to reporting life and death.

Clauses 46 to 48 make progress in a significant area. The hon. Member for Cambridge asked whether we are modernising legislation for the sake of modernisation. My answer is no; we are modernising because we live in a modern world where the assistance that people are turning to and the encouragement that people are vulnerable to are in a new medium—the digital medium of the internet. In her review, “Safer Children in a Digital World”, Professor Byron emphasised the use of the internet to encourage or assist suicide, and recommended that the matter be brought in line with the 1961 Act. I therefore commend the Government for taking action today.

In covering the deaths in Bridgend, the media filled the gap of understanding about the multiple clusters of suicides with the story of an internet death cult. I do not know how many times that I have to say this, but there was no such cult in Bridgend and the social networking sites were not involved in encouraging people to take their lives. What we had was a major problem of undiagnosed mental illness, which then became a problem of social contagion. There were many things to address about what was happening in Bridgend, but an internet death cult was certainly not present.

When the story broke, I decided to find out what people were talking about. Like the hon. Member for North Wiltshire, I urge Members to go downstairs to the Library and type in just a few words—they will be horrified. Keith Hawton, Lucy Biddle and their colleagues have researched the phenomenon. The search engines Google, Ask Yahoo! and MSN produce sites that provide information on methods, success rates of methods and the pain associated with different methods. Members might even blunder into a chat room, where they would find themselves being actively encouraged not to contemplate taking their lives but to take their lives. Those chat rooms praise people who have done that and support suicide pacts.

The hon. Member for Cambridge mentioned that risk when he mentioned his concerns about discussing and exploring suicide methods. Such chat rooms are different from an e-mail from me to a friend saying, “I’m confused, hurting and thinking.” We are talking about chat rooms where people’s anxieties are deliberately lessened, where the anxieties and fears of those who are uncertain are removed, where the uncertainty about taking that final step is belittled, and where people are told, “Move forward; such and such is the way to do it. So and so did it, and it was good for them.”

A study by Pierre Baume and his colleagues observed that people posting notes in chat rooms concerning suicide are often unsure, but they are encouraged and strengthened by the replies that they receive, which often means that changing their mind to seek help and support becomes more difficult. People are not encouraged to seek help and support, and they are taught, told and indoctrinated that there is only one way forward.

A young man from Bournemouth university, who was looking at the issue as part of his studies, came to see me. He went into one of those chat rooms and was deeply frightened by what he experienced there. Even though he was neither emotionally vulnerable nor personally contemplating suicide, he was still frightened at the pressure that he received. Imagine that experience if one were unsure about one’s self and one’s life.

The research at the university of Bristol found 240 sites in the top 10 hits in the four main search engines. We are not talking about one or two but 240 that could be found—possibly, even more could be found today in the Library—and one in five of them were dedicated suicide sites. Half of them encouraged and promoted suicides, and half contained personal and other accounts of methods; 12 sites were chat and discussion forums of methods used.

Only 13 per cent. of the sites offered support and preventive advice. In my understanding of the legislation—I appreciate that I am not a lawyer—those who offer support and preventive advice would not be encouraging and assisting, and that is the big difference. Other sites—they are called recipe sites—do not offer support or advice, or seek to get someone to turn to others for advice and information.

Papyrus has written to me regarding the legislation. As the hon. Member for North Wiltshire said, it has evidence that deaths that have taken place as a result of websites. Two requirements are needed for a successful prosecution of assisting suicide: first, an act of assisting and, secondly, a demonstration of intent. The hon. Gentleman mentioned the case of Regina v. Gary Howes, which a judge rejected on the grounds that the action was merely preparatory and that a face-to-face meeting would be required before the case could be brought before a jury.

The hon. and learned Member for Harborough questioned the need for proposed new subsection (1A), and I understand that that clause would remove the need for the face-to-face meeting that currently appears to be required. Since 2006, a legislative approach to the problem of suicide sites and chat rooms has been taken in Australia, where it is illegal to use the internet to promote the idea or to provide practical details concerning suicide, and internet service providers and countries, such as Japan and South Korea, have attempted to block specific sites. The use of legislation to track down child pornography sites has set a precedent for this sort of legislation.

Last week’s Guardian contained an article by Robert Booth with the chilling statistic that specialist officers from CEOP—the Home Office child exploitation and online protection centre—receive an average of four alerts a day from children who are about to meet suspicious persons or who are suicidal because they have been comprehensively groomed.

James Gray (Conservative, North Wiltshire)

It is curious that it is illegal in this country to groom a child for sex but not illegal to groom a child for suicide.

Madeleine Moon (Labour, Bridgend)

That is a helpful intervention. I am sure that the Government will have considered that point when looking at the legislation, and it is specifically covered in the clause.

When one needs to report someone who is making inappropriate sexual interventions towards a child, alerts are made through a “report abuse” button, which leads to a specialist trained police officer. I would welcome clarification about how the public, researchers and professionals will be able to alert authorities to the existence of websites with chat rooms that they fear are capable of or intend to assist or encourage the suicide or attempted suicide of another person.

Currently, there is no official body to which they can complain. Complaints can be directed to the police or the ISP. I have held meetings, however, with Microsoft, Google and other ISPs, which made it clear that they do not consider the policing role to be part of their function, although they are more than happy to respond to directions from the police, CEOP or the Internet Watch Foundation.

It seems clear that either a new independent body needs to be created to assess the legality of a site or, if necessary, ISPs need to be instructed to take down or block such sites. Alternatively, the Internet Watch Foundation could include that function in its current remit. However, when that was discussed by the all-party suicide prevention group, which I chaired, the representative from the Internet Watch Foundation made it clear that it did not feel that it had the capacity to expand to include that remit.

Search engines, social networking sites and video-sharing sites, such as YouTube, and ISPs, have a clear responsibility to respond to key words, so that support sites, such as the Samaritans, can be optimised, but such site optimisation is not covered by the Bill.

James Gray (Conservative, North Wiltshire)

It is interesting to note that the Byron review stated specifically that, once these two clauses have been passed and such sites become illegal, sites that exist to promote suicide in a way that contravenes UK law should be taken down once the relevant ISPs have been notified of their existence. In other words, it will not be a question of the ISPs policing the web, but as soon as they have been informed of an illegal site, they should be reasonably expected to remove it.

Madeleine Moon (Labour, Bridgend)

I am addressing the question of who will do the informing. Who has the authority to do that, and how will it take place? Will we have a button that says, “Press here to alert”, and to whom does that alert go? That is important.

I also think, however, that organisations such as social networking sites, video-sharing sites and ISPs can take many steps without legislation needing to be in place, to optimise help sites, such as the Samaritans. If someone types, “Ways of killing yourself” into a search engine, they should not immediately be taken to a recipe site, but to a helpful and supportive site. I believe that they have a moral obligation to pursue that in their own right. Some are doing that already, and I must say that I have been impressed with much of the work of social networking sites.

Biddle found that attempts are being made to clear up the web. For example, links to one prominent suicide site were often unavailable—it had already been blocked and removed. However, efforts to remove some of the more detailed and technical descriptions of methods seemed to be circumvented easily, and several sites provide access to almost identical files on suicide methods but under different names. I would welcome the Minister’s comments on concerns expressed to me that site authors could simply add disclaimers stating that they are not promoting suicide and, in so doing, argue that they are not assisting or encouraging suicide.

Mind has produced statistics showing that one in 10 five to 15-year-olds are clinically diagnosable with mental health problems. At-risk groups, especially teenagers who are lonely and isolated and who have low self-esteem, psychological disorders and poor relationships with parents and peers, value the internet in particular for its anonymity and the opportunity to experiment with identity and to share information and intimacy of thought. That is why we need to modernise our legislation.

The majority of hon. Members on both sides of the Committee, while growing up, did not have the opportunity to experiment with identity, share information and intimacy of thought anonymously—through the internet—but our children and grandchildren do. That group is highly vulnerable to being influenced by suicide sites, and it is therefore our responsibility to do all that we can to protect them.

It is also our responsibility to put in place all that we can to assist them. Australia, for example, has an excellent site called Reach Out! It is being expanded into the United States, Northern Ireland, and I have heard recently that Portugal has expressed an interest in it. A site such as Reach Out!, which has quite dramatically cut suicides among young people in Australia, gives young people a place where they can go safely—as the hon. Member for Cambridge mentioned—to explore and discuss suicide, suicide methods and suicidal thoughts, knowing that they will not be pursued and encouraged to take that step; quite the opposite will happen. We need to expand that secure setting, and we have a huge responsibility.

We also have a responsibility to warn our children of the risks. I recently produced two leaflets about internet safety—one for children and one for parents. I took them around my primary schools, and in each one, I talked to the top year—those who will go into comprehensive schools next year. In each class, I handed out the leaflets and asked the children to take one home to mum and dad. I asked how many of them knew more about the internet, its management and how to use it than their parents, and in every class, 100 per cent. of hands went up. One hundred per cent. of those children knew more about this medium than their parents. I asked how many of them had had access when using the internet to material that had upset, disturbed or worried them, and 100 per cent. of hands went up.

I asked the schools to send me back comments from parents and children about the leaflets, and the number of parents who found it helpful was remarkable. The desire of parents to protect their children is one of the strongest motivating forces. The problem arises when parents do not know how to protect their child without appearing foolish. Most do not discuss this issue, because they do not know the language, which safety methods to promote or how to give advice and support.

We could address this issue by having parental controls implemented in computers once they are sold. I see no reason why PC World, Currys and so on cannot sell a range of computers with appropriate parental controls already embedded. If the various ISPs could agree on a common set of programmes to provide parental measures, that would be helpful.

I welcome the clause. It puts down a marker that the internet will not provide a hiding place for those who take malicious pleasure in supporting and encouraging people in crisis, particularly those who, with the right help and support, could live long and fruitful lives. If such people choose help and support rather than suicide, their lives can be fulfilled.

At a conference that we attended together, Dr. Robert Colgate, a psychiatrist from my constituency said, “Suicide is a rubbish choice—you never know the end of the story if you choose suicide.” There are other ways in which we can prevent people from taking their own lives, but this is a particularly helpful way.

Brian Iddon (Labour, Bolton South East)

Obviously, when the Suicide Act 1961 was brought on to the statute book, the internet was not developed to the extent that it is today. I warmly welcome the amendments tabled by the Government, following the Byron report; they are necessary now, as my hon. Friend the Member for Bridgend has illustrated.

Apart from the clarification in the Bill, the law needs no further clarification; it is quite clear, despite what has been argued in the press and in various articles. It has a harsh face, of course, because part of the purpose of the law is to deter people from helping others to kill themselves, whether for compassionate reasons or self-interested motives—a will around the corner, perhaps—and it is there to provide protection especially for vulnerable people: the elderly, the seriously handicapped and even the mentally ill, because they should be protected, too, as my hon. Friend has just explained.

Yesterday, I typed “suicide” into Google and within an amazing 0.7 seconds, it came up with 68,200,000 entries. Most of them are reports of people having committed suicide around the world and, of course, searches can be limited on any search engine. So I typed “How to commit suicide”, which reduced the number of entries, but only to 3,150,000 in 0.9 seconds. Plenty of information is out there, and two Committee members have already demonstrated how evil some of that information is.

The social networking sites are probably the most dangerous of all, as my hon. Friend has also illustrated. I have come across postings where a desperate user, for example, who wants to know how to hang themselves gets into a chat room where somebody somewhere in the ether comes in and says, “Okay, I can tell you the websites where nooses are described that will not unravel when the weight of your body takes hold of the rope and I can tell you which knots to use as well.” So not only is this information written on the internet, it is also personal, face-to-face information if you know how to browse the internet, as most teenagers do.

I had an article on e-safety published in the November/December 2008 edition of the magazine, “Public Sector Executive”. Most parents and teachers are pretty naive and believe that, by buying commercial filters or building firewalls into the system, they can prevent their young people from accessing the kind of undesirable websites that we are talking about. Well, I have got news for those people: yes, commercial filters and firewalls are a barrier, but nearly all teenagers know how to Google their way round them. In my article, I explain how easy it is and how to do it within seconds. If people think that young people are being prevented from accessing such websites, they are living in cloud cuckoo land.

Packages are now available that can remotely monitor the use of computers in a town library, for example, or in a school, whether primary or secondary, and see what the children are doing. Of course, that takes away some of the users’ privacy, but children in school are supposed to be using the computers for education purposes. My article shows that they are not always using them for such purposes and that they are accessing mainly pornography and, just occasionally, suicide sites and other undesirable sites, too. Packages can be bought that monitor the use of all the computers in the school by all the children, whether they are using them in the school or accessing them from home by a link at night.

Brian Iddon (Labour, Bolton South East)

In The Daily Telegraph of 26 February 2008, there was an interesting article about how predators tell children how to kill themselves. It alleged that people have unearthed a network of suicide gurus who actively go about encouraging children to commit suicide and telling them how to do it. Unfortunately, two of the suicide guru sites are active in chat rooms, so there is no doubt that we have to take some action on the internet.

I am sorry that some Members are seeking to use the Bill to bring in assisted suicide. Three attempts to do that have already been made in the House of Lords, by Lord Joffe. Each attempt has failed, including the last one in 2006, which was defeated by 148 to 100 votes. The proper way to have a debate on assisted suicide, or to attempt to bring in assisted suicide, in this country, is not by parasite amendments on a Bill such as this one, which has clear intentions, but to bring in a separate Bill. I know that at least one Liberal Democrat Member who believes in assisted suicide has come out with a private Member’s Bill, but has chosen an entirely different topic. That Member could have used his Bill to test the temperature of the House on the point. Debates such as this split political parties, as we have seen this afternoon. It is a moral issue and I hope that it will be given a free vote, like abortion.

I shall address amendments 9, 10 and 12 to 16, which the hon. and learned Member for Harborough tabled. They appear to be designed to refine the wording of the Bill so that it does not criminalise acts which, although arguably capable of encouraging or assisting suicide, are not intended to do that. For example, a mother might respond in a moment of anger to a difficult teenager who has threatened to kill themselves. She believes that they are merely posturing and tells them to get on with it.

Although I accept that the Conservative amendments are well intentioned, they are unnecessary. I would prefer that the clauses in the Bill be relatively uncluttered, as they stand, without making them more complex. I suggest to the hon. and learned Member for Harborough that it is unlikely that the Crown Prosecution Service—as a lawyer, he will know—would prosecute in circumstances such as those I have described. One could probably describe another 100 similar circumstances. The Crown Prosecution Service would simply not take a mother to court in such circumstances.

Edward Garnier (Conservative, Harborough)

The CPS would not do so because the mother would not come within subsection (2)(1)(b):

“D’s act was intended to encourage or assist suicide or an attempt at suicide.”

Both provisions have to be read together and clearly the mother would not have had the necessary intention. Although I am interested in hearing what the hon. Gentleman has to say, and I am quite happy to be criticised about all sorts of things, the point that he has just made is not a terribly good one.

Brian Iddon (Labour, Bolton South East)

Let me make another point. The hon. and learned Gentleman’s amendments would mean that to secure a conviction, it would presumably be necessary to show that the publicity given had encouraged, or assisted, a particular suicide, which is an almost impossible task to achieve.

However, I have more difficulties with the amendments tabled by the hon. Members for Cambridge and for Cardiff, Central. If accepted, they would not only seriously weaken the Suicide Act 1961, but they would bring in assisted suicide in this country for the very first time, as I have explained, and on the back of a Bill that is not intended for that purpose.

All euthanasia campaigners are now proposing that the law should draw a distinction between malicious encouragement, and actual assistance, of suicide. I believe that is a silly position to take. Moreover, the amendments that the hon. Member for Cambridge has tabled would not be limited to assisting particular classes of people such as those who are terminally ill, whom he has mentioned this afternoon, but would refer to all people, including young, mentally ill people. If accepted, the Liberal Democrat amendments would take the House much further than any of the three Lord Joffe Bills have suggested that we go.

David Howarth (Liberal Democrat, Cambridge)

Perhaps the hon. Gentleman did not hear what I said at the start of my remarks. The amendments were put forward purely on a probing basis. There is no intention at all to put them to any sort of vote. It might shorten the debate if he accepted the point and just talked about the substance of the issue, rather than the drafting of particular amendments.

Brian Iddon (Labour, Bolton South East)

I heard the hon. Gentleman loud and clear, but I have been listening to the whispers in the House for the past two or three months. When we consider this omnibus Bill on Report—the hon. Gentleman can correct me if I am wrong—there will be people in the House who will try to hijack it for a widespread debate on assisted suicide. I hope that I am wrong, but I believe that these proposals are just the trailer for more amendments later.

David Howarth (Liberal Democrat, Cambridge)

I also said that I regret that that will probably be the case. I would have preferred a private Member’s Bill to have been brought forward so that we could have a detailed discussion about the entire issue in the way the hon. Gentleman described. I am afraid it is a consequence of what the Government have chosen to do in putting forward a reform of the entire subject, rather than a reform of the particular and important issue of suicide websites.

Brian Iddon (Labour, Bolton South East)

The amendments may be probing but they are also dangerous, and I hope that the Committee will reject them outright. The amendments argue that encouraging someone to commit suicide is reprehensible, but that assisting them to do so once they have made up their mind is not. That is like saying it is wrong to encourage a person to shoot themselves with a gun, yet giving them a loaded gun once they have made up their mind to accomplish the act of suicide. That is what the amendments mean, and they are based on the profoundly false assumption that if someone decides to commit suicide, their decision is rational and healthy and one that society should uphold. Most of us know that the majority of people who commit suicide, or attempt to commit suicide, are not acting rationally at that specific moment in time, and that they are disturbed or seriously depressed in the extreme. I cannot believe that society as a whole would want to introduce a Bill that would enable severely mentally depressed people to commit suicide, yet that is what the amendments suggest. I know that the hon. Member for Cambridge says—I accept what he says with a great deal of respect—that they are probing amendments. None the less, my fear is that the probing amendments will be picked up on Report by people who are much more vociferous about bringing in assisted suicide. Let us not fool ourselves, there are tremendous pressures in the House at the moment to get assisted suicide in as the thin end of a wedge. Lord Carlile recently said in the House of Lords that it is not just a slippery slope, but a well polished one. I hope that the Committee will accept the clauses and reject both sets of amendments.

Maria Eagle (Labour, Liverpool, Garston)

May I begin by saying that we have had a superb debate in respect of these matters given the strong feelings on the issue? I have enjoyed listening to the contributions of all hon. Members, but I hope that the Committee will forgive me for singling out my hon. Friend the Member for Bridgend for her contribution. She brought her constituency experience to bear on the matter. I know that other hon. Members have also done that, but her particular experience in her constituency has clearly led her to investigate and take action across a whole range of matters. She brought her gained knowledge and insight into the remarks that she made this afternoon in a very impressive way. Moreover, by talking about such matters following the cluster of suicides in her constituency, she has influenced the Government in bringing forward some of our amendments. I want to put it on the record that we might not have been ready to move as swiftly as we have on this matter had it not been for her contributions and suggestions.

Other hon. Members across the Committee and across the House have an interest in certain aspects of this issue from one perspective or another. All hon. Members bring their constituency experience to bear. That is one of the great strengths of our democracy and our first-past-the-post election system. Our constituency-based system enables hon. Members to represent what happens in their constituencies in a way that is not allowed by any other system. That has been demonstrated in this afternoon’s debate.

It might be helpful if I go through some of the clause stand part points before dealing with the amendments so that it is clear what we are trying to do. In discussing what they have admitted are probing amendments, hon. Members have asked what our intention is, whether we are narrowing the law or keeping it as it is and whether we are just modernising the language.

I informed the House in September of our intention to simplify and update the statutory language of section 2 of the Suicide Act 1961. These clauses fulfil that intention. We reviewed the law in response to growing pubic concern about the misuse of the internet to promote suicide and suicide methods. We have heard from hon. Members on all sides of the Committee how far material on the internet goes. The severity of the information and material would surprise some Members of the House who are not as adept as their children and grandchildren in using this new medium. It can only assist the debate for us to hear how bad the material is.

I will say a little about the current law and explain why the changes will improve the situation. Section 2(1) of the 1961 Act makes it an offence to aid, abet, counsel or procure the suicide or attempted suicide of another person. It is an unusual offence because it criminalises aiding and abetting something that is not of itself an offence. The offence of suicide was abolished by section 1 of the 1961 Act.

Section 2 of the 1961 Act is supplemented by the provisions of the Criminal Attempts Act 1981, which makes it a criminal offence to attempt to commit a crime. The 1981 Act does not usually apply to secondary parties to an offence on the basis of aiding and abetting, but it does apply to section 2 of the 1961 Act because a person who aids, abets, counsels or procures a suicide is guilty as the principal offender, not as a secondary party. That means that as well as it being an offence under section 2 of the 1961 Act to aid, abet, counsel or procure the suicide or attempted suicide of another, it is also a separate offence under the 1981 Act to attempt to do so.

For an offence under section 2 of the 1961 Act to be committed, there must be an intention to aid an actual or attempted suicide and it must then take place. For an offence under the 1981 Act to be committed, the defendant must carry out an act that is more than merely preparatory to aiding or abetting a suicide or suicide attempt with the same intention. No actual suicide or suicide attempt need occur as a result. It is not a requirement that actual assistance is given to any person for there to be an attempt to assist suicide under the 1981 Act.

A number of questions have been raised about whether the clauses extend the current law. Hon. Members must bear it in mind that we are replacing two offences: we are replacing section 2 of the 1961 Act and removing the application of section 1 of the 1981 Act from that offence. It might assist Members’ understanding when I say that we are not widening the scope of the law through the changes in the Bill.

Hon. Members have seen for themselves the statements on suicide websites. The hon. Member for North Wiltshire and my hon. Friend the Member for Bridgend made that very clear, by citing examples of the material that can be found, so I shall not cite any others, although, on the basis of what my hon. Friend the Member for Bolton, South-East said, there are many out there. In our view, such statements that demonstrate a clear intent to encourage or assist suicide are covered by the current law. In the absence of an actual suicide or suicide attempt, the relevant charge would be an offence under section 1 of the Criminal Attempts Act 1981. When there is a link to an actual suicide or attempted suicide, the relevant charge will be the substantive offence under section 2 of the Suicide Act 1961.

The Law Commission, which has examined this area of law, shares our view that, together, the two offences are capable of catching all behaviour that ought to be unlawful, including the encouragement of suicide through the medium of the internet. We must remember that, although the internet allows instantaneous access to a much wider range of material than the local library ever did, there is no doubt that it is a medium of communication—a place where information is; it is nothing other than that. However, the fact remains that, among the public, particularly those who have lobbied for stronger action on suicide websites——we all understand why they do——there is doubt about whether the current law is an adequate tool for dealing with such online activity. That is largely because the law is unnecessarily complicated, and the Law Commission shares that view. The law is difficult to understand and explain, and that is why we are changing and updating the language.

James Gray (Conservative, North Wiltshire)

I am sure that the Minister is absolutely right. Although there is, theoretically, a criminal offence at the moment, the fact that there have been at least 46 known internet-assisted suicides and no successful prosecutions whatever, according to Papyrus, indicates that something must happen to make it easier for the CPS and the courts to convict.

Maria Eagle (Labour, Liverpool, Garston)

I have spoken to Papyrus myself, as have many Committee members, and I know and understand its figures. I do not wish to comment on whether there was always a causal link in the cases that it identified, but elements would certainly suggest a link between the internet and what happened in some individual cases. Members have referred to Gary Howes. The hon. Member for North Wiltshire referred to the case, which, to be fair, was a first instance decision in the Crown court, whereby the defendant was charged with attempting to commit the section 2 offence under the Criminal Attempts Act 1981. I do not wish to comment on what the judge might have said in that case, but I believe that some interpretations of the issues arising from the case were not correct, which serves to emphasise the fact that it would be helpful to clarify what the law does allow. Its complexity seems to be largely attributable to the unusualness of having an offence of aiding or abetting something that is not itself a criminal offence, along with an attempt offence that leaves an even longer chain of liability, disappearing off into conceptual difficulties as we all try to contemplate what on earth it means.

In addition, the language of the terms aiding, abetting, counselling or procuring, which are consistent with the general secondary participation provisions, dates back to the Accessories and Abettors Act 1861. One recalls with fondness—certainly, I do—the Serious Crime Act 2007, and we have been trying to update the language. Aiding, abetting, counselling or procuring are equivalent to encouraging or assisting in more updated and modern language—modern being a word that the hon. and learned Member for Harborough does not like me to use. However, we believe that, cast in that light, the measure is more understandable. It is being brought into line with other changes that are being made—for example, to the inchoate offence—to update the language, and we believe that that is useful.

At first glance, the clause may appear more complicated than section 2 of the Suicide Act 1961, but the clause simplifies the current law in several respects. First, it replaces the two offences of aiding, abetting, counselling or procuring suicide, and of attempting to do so, with a single offence. The current need for reliance on the Criminal Attempts Act 1981 will be eliminated. All the law will be in one place, and that has to be helpful. Secondly, it replaces the old-fashioned language with the more up-to-date, understandable terms of encouraging and assisting, which are easier for all concerned to make sense of. Thirdly, it reflects current case law on a section 2 offence and attempting to commit a section 2 offence. It is important to emphasise that the clause does not change the scope of the current law when section 2 of the Suicide Act 1961 is read in combination with section 1 of the Criminal Attempts Act 1981. Any activity that is currently illegal will remain so.

I shall briefly go through the clause in more detail and then deal with the amendments. Subsection (2) sets out the single offence that replaces the offences of aiding, abetting counselling or procuring and of attempting to do so. The offence will apply where a person does an act that is capable of encouraging or assisting another person to commit or attempt to commit suicide and intends his act to so encourage or assist. The person committing the offence need not know the other person or even be able to identify them. In the context of websites promoting suicide, as the hon. Member for North Wiltshire has discerned and as my hon. Friend the Member for Bolton, South-East also said, this is an important point. It is highly unlikely that the author of such a site will know the identity of those who access it. But if he intends that one or more of his readers will commit or attempt to commit suicide, then he is guilty of an offence. In such circumstances, face-to-face meetings are not necessary: he is guilty of an offence.

Section 2(2) of the 1961 Act currently provides that if, on the trial of an indictment for murder or manslaughter, it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of the offence. Clause 46(3) simply amends subsection 2(2) of the Act so that the language is consistent with the new language of section 2(1).

Subsection (4) would insert proposed new sections 2A and 2B into the 1961 Act. Proposed new section 2A elaborates on what constitutes an act capable of encouraging or assisting suicide. It provides that a person who arranges for someone else to do an act capable of encouraging or assisting the suicide or attempted suicide of another person will also be liable for the offence if the other person does that act. So if A arranges for B to supply a gun to C with the intention that C will use the gun to commit suicide, A is equally liable. Proposed new section 2A(2) provides that an act can be capable of encouraging or assisting suicide even if the circumstances are such that it was impossible for the act actually to encourage or assist. That would cover, for example, the case where pills provided with the intention that they will assist a person to commit suicide are thought to be lethal but are in fact harmless or where lethal pills sent to a person with the intention that the person would use them to commit or attempt to commit suicide get lost in the post. Proposed new section 2A(3) clarifies that references to doing an act capable of encouraging or assisting another to commit or attempt suicide include a reference to doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.

Proposed new section 2B provides that an act includes a course of conduct, such as a case where a person supplies another person with poison such as arsenic over a period of time, intending that the other person will use the poison to kill himself.

Clause 46 does not create internet-specific offences. Some Committee members have suggested that that might be a way forward, but it would not be necessary or sensible to do so. The internet is simply a means of communication—a way of getting swift access to a much wider range of information that might otherwise not have been available before its invention—and the law already applies to that means of communication as it does to any other. I hope that reframing the law in new, modern language will help to reassure people that the law is capable of reflecting the new ways of communicating and accessing information that have developed since the 1961 Act was passed.

I am conscious that the amendments are probing amendments and I hope that what I have already said deals with some of the points arising from them. Amendments 178 to 186, tabled by the hon. Member for Cambridge, would remove the words “assisting” and “assist” from the relevant clauses, with the result that only encouragement of suicide would remain as the criminal offence. He said that they are probing amendments, but I do not know whether he took into account the current law under section 1 of the 1981 Act and how it applies. I hope that I have answered the points that led him to table them.

The current law does not differentiate between encouraging and assisting suicide. Aiding, abetting, counselling and procuring cover encouragement and assistance. Currently, the law treats those things equally, although that may not be readily apparent from the language in statute. None the less, it is a fact. The new formulation will cover the same behaviour as the old. The provisions will simplify and update the law, but will not alter its scope, and we do not believe that it ought to be altered in the way that the amendments suggest.

Basically, the hon. and learned Gentleman’s amendments would do three things. Some would remove the reference to capability, which of course does not appear in section 2 of the Suicide Act, because, as I have tried to explain, the new offences attempt to cover both section 2 and the impact of section 1 of the Criminal Attempts Act 1981 relating to suicide offences. We are not seeking to extend the scope of legislation, but to put those two offences together, so that it is clearer, and therefore to disapply the workings of the Criminal Attempts Act from the remaining offence. We believe having one offence in the same place will be less confusing than having two offences.

Under existing law, an act capable of encouraging or assisting suicide, and intended to do so, is an offence, under section 1 of the 1981 Act, not the 1961 Act. We are not changing the scope. I hope that that gives him some reassurance that we are not making massive and unjustifiable changes to the law. Unless paragraph 53 of schedule 19 is also removed, his amendments would narrow legislation, because some conduct caught by the 1981 Act would not be criminal, and his amendments would not actually remove those. I hope that he would agree, therefore, that the words “capable of” are indeed necessary and that he will not press his amendments.

Amendments 422 and 424 would remove the provision stating that a person who commits an offence of encouraging or assisting suicide need not know, or even be able to identify, the person encouraged or assisted by his act. The hon. and learned Gentleman might have thought, when he tabled his amendments, that that provision widens the law—perhaps that is why he was trying to remove it—but that is not the case. Proposed new subsection (1A) does not introduce anything novel, but simply reflects the position under existing law. For example, if the publisher of a suicide website intends that a person accessing the site commit, or attempt to commit, suicide, he will be guilty of an offence, even though it is highly unlikely that he will know the identity of those accessing his website. That is the position under the law, although there is confusion about it, and it will remain the position under the new law. Given that proposed new subsection (1A) simply reflects the legal position, I hope that he will accept that it is appropriate for it to remain in the clause and therefore not feel that his amendments are necessary.

Amendments 423 and 425 would remove the provisions stating that an act can be capable of encouraging or assisting suicide even if the circumstances are such that it was impossible for the act actually to encourage or assist. The hon. and learned Gentleman might have thought that the new provisions widen current law, but that is not the case, given the points that I have made already about the 1981 Act. On that basis, I hope that he accepts that the new formulations will not widen the law, but clarify it, and that he accepts therefore that his amendments are not necessary.

Edward Garnier (Conservative, Harborough)

The Minister opened by saying that this has been a superb debate, which I think was a fair description. My complaint is that this superb debate is taking place in the wrong place. It should have taken place on the Floor of the House during the course of a Suicide Act amendment Bill Second Reading debate. We have been discussing this clause and these amendments for a little over an hour, subject to the vote downstairs. The way in which the contributors to the debate—be it the hon. Member for Cambridge, the hon. Member for Bolton, South-East, the hon. Member for Bridgend or my hon. Friend the Member for North Wiltshire—have approached it shows that much needs to be said and a great deal of explanation needs to come from the Government. To be required to compress the debate into a debate within Committee is not, although it has been a good experience to take part in, the most sensible way to develop the law. I seem to make that point rather a lot. Although I accept—I have said this before, too—that a bad point is never improved by repetition, sometimes a good point needs to be hammered home. If I can get it into the heads of the Government business managers and those who construct these Bills that this is simply a silly way to conduct the creation of legislation, I will, I hope, have achieved something. I have failed over the past 10 years; perhaps in the last year of this Parliament I will make some progress.

I do not have any concerns, which the Minister may have implied, about using modern language. I have no concern about people wanting to update the way in which offences are defined. So long as it is in English, in sentences and clauses, and the thing makes sense, I do not care. What is important is that one does not use the word “modern or “modernisation” to camouflage intellectual vacuity or a total lack of direction.

I am concerned that, for example, proposed new section 2A(2), which will be inserted into the Suicide Act 1961 and which is covered by my amendment 423, is largely incomprehensible. I fully understand what the Minister says about the intention of it. We all know or at least some of us know about the concept of the attempt to do the impossible, but I can see it now—I can see David Thomas reading out subsection (2), to the chuckles of my colleagues at the Judicial Studies Board, roaring his head off and saying, “I wonder who drafted this lot.” Then some judge will break his pencil and say, “Well, I suppose we’ll just have to interpret it as best we can.” I have now heard the Minister say what she intends it to mean, and the mad hatter and his tea party can move on to the next course.

I shall finish on this point. I have never known my hon. Friend the Member for North Wiltshire to be concerned about my well-being or feelings before, but I was delighted—

Maria Eagle (Labour, Liverpool, Garston)

He thinks of nothing else.

Edward Garnier (Conservative, Harborough)

That is also worrying. I was delighted that my hon. Friend missed most of my speech, because had he heard all of it, he might have been even ruder about it, but what he missed—I think that he accepts this—is that the amendments, as a number of contributors have recognised, were designed to create an opportunity for a debate. I am not sure whether he was in the Committee Room at the time, but as I think I also said, the discussion in relation to amending the Suicide Act, certainly in this Committee under my leadership and that of my hon. Friend the Member for North-West Norfolk, in so far as that is the correct way to describe it—“command” is too grand a word for what we are about—is a free vote issue. I thought that my hon. Friend the Member for North Wiltshire would sleep more easily both in Committee and after Committee, having heard that.

I want the Government to take seriously the point that I make about the process in which we are engaged. I have not actually looked at internet suicide sites. I spent the period between the adjournment at 1 o’clock and 4 o’clock trying to become engaged in internet banking. I crawled out of my cave and found it all far too difficult, so I am not sure that I shall be going too far in looking up internet suicide sites, but I fully appreciate the points that the hon. Member for Bridgend has made. Indeed, when I visited HM prison Parc in her constituency last year, as she may remember, it was clear that the atmosphere in and around Bridgend had been completely dominated by the huge numbers of young people who had killed themselves, and I fully appreciate the motive with which she comes into the debate. I just wish that she had an option to say more of what she wanted to say on Second Reading—she did take part in Second Reading of the Bill and mentioned the subject. I hope that she will agree that this particular area of the law requires its own Bill, and we do ourselves and our constituents a disservice by crushing the debate into such a limited forum. That is enough from me on the subject, and I beg to ask leave to withdraw the amendment.

Clause 49

Edward Garnier (Conservative, Harborough)

I beg to move amendment 427, in clause 49, page 29, line 7, leave out ‘be in possession of’ and insert

‘publish by any means whatsoever to another’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: amendment 72, in clause 49, page 29, line 11, leave out ‘disgusting’.

Amendment 428, in clause 49, page 29, line 13, leave out ‘produced’ and insert ‘published’.

Amendment 429, in clause 49, page 29, line 14, at end add

‘of the publisher or of a publishee’.

Amendment 430, in clause 49, page 29, line 15, leave out ‘(as found in the person’s possession)’ and insert ‘on publication’.

Amendment 431, in clause 49, page 29, line 26, at end add

‘of the publisher or of a publishee’.

Amendment 432, in clause 50, page 30, line 19, after ‘extracted’, insert ‘and published’.

Amendment 433, in clause 50, page 30, line 20, at end add

‘of the publisher or of a publishee’.

Amendment 434, in clause 51, page 31, line 13, leave out ‘it is’ and insert ‘he has’.

Amendment 435, in clause 51, page 31, line 14, leave out ‘for the person’ and insert ‘where the prosecution fails’.

Amendment 436, in clause 51, page 31, line 15, leave out ‘a’ and insert ‘no’.

Amendment 437, in clause 51, page 31, line 15, leave out ‘being in possession of’ and insert ‘publishing’.

Amendment 438, in clause 51, page 31, line 17, leave out first ‘not’.

Amendment 439, in clause 51, page 31, line 17, leave out from ‘and’ to ‘it’ in line 18 and insert ‘knew, or had cause to suspect’.

New clause 35—Responsibility for publication of prohibited image—

‘(1) A person has a defence if—

(a) he was not the author, editor or publisher of the prohibited image,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of the prohibited image.

(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection (3)—

“author” means the originator of the image, but does not include a person who did not intend that an image originated by him be published at all;

“editor” means a person having editorial or equivalent responsibility for the content of the image or the decision to publish it; and

“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.

(3) A person shall not be considered the author, editor or publisher of an image if he is only involved—

(a) in printing, producing, distributing or selling printed material containing the image;

(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the image;

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the image is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(d) as the broadcaster of a live programme containing the image in circumstances in which he has no effective control over the maker of the image;

(e) as the operator of or provider of access to a communications system by means of which the image is transmitted, or made available, by a person over whom he has no effective control.

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.

(4) Employees or agents of an author, editor or publisher are in the same positions as their employer or principal to the extent that they are responsible for the content of the image or the decision to publish it.

(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a prohibited image, regard shall be had to—

(a) the extent of his responsibility for the content of the image or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the author, editor or publisher.

(6) This section does not apply to any publication which arose before the section came into force.

(7) For the avoidance of doubt, the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution.’.

Edward Garnier (Conservative, Harborough)

We now move into a completely different realm, dealing with an adjustment to the criminal law concerned with images of children, and whether it should be an offence to possess certain prohibited images. The amendments, standing in my name and those of my hon. Friends the Members for North-West Norfolk and for Rugby and Kenilworth, are broadly in two and a half parts.

There is a simple point regarding amendment 72, which concerns clause 49(2)(c). I want to know what the use of “disgusting” in the clause adds to the offence. “Offensive behaviour” is a term that criminal courts, and, I think, most members of the public who come into contact with pornography or antisocial sexual behaviour, are aware of, while “disgusting” seems to be simply an emotive term that does not—unless I can be persuaded otherwise—help the shape of the clause very much. It is a great word to spit out and it adds emphasis to one’s sense of abhorrence at the thing that one is looking at, but I wonder why the Government think that it is appropriate to use that word in addition to “grossly offensive”. It leads one to wonder, if the prohibited image is grossly offensive and disgusting, or otherwise of an obscene character, where that paragraph leads one to. I think that the Director of Public Prosecutions, Mr. Starmer, told us in the evidence sessions that “disgusting” was not an unusual word to be used in criminal statutes, dealing with this particular area of the criminal law, and while I am happy to be corrected, I think that it is unnecessary and over-egging the pudding. That is the half part of my two and a half parts that deal with prohibited images.

The first main part leads us to a discussion on whether the evil or wrong that we seek to prohibit is best captured by attacking possession of prohibited images of children or, as we suggest in our amendment, their publication. For those purposes, publication means the making known of an image to a third party. It is not the technical process of publishing a newspaper or book. Making known to a third party is drawn from defamation law.

My suggestion—I am entirely open to others—is that we are dealing with unreal people, not with human beings or children. If we were, the position would be different, because someone taking an obscene photograph or creating an obscene drawing of a real child needs to have the child in front of them doing the obscene act, or depicted doing it. Here, we are talking about images of children that do not require the presence of a child to create the image. A silly example is a disgusting old man—

Henry Bellingham (Conservative, North West Norfolk)

A pervert.

Edward Garnier (Conservative, Harborough)

I am grateful to my hon. Friend, who is always ready with the word that is needed. A pervert in his office or the back room of his house could be creating grossly offensive, disgusting or otherwise obscene images. Having drawn them or created them on his computer, however people do such things, he would be in possession of it. One could go through the whole of this part of the Bill and decide that he fits into this, that or the other category, but he would not have done anyone else any harm. He may have drawn the image for his own gratification and may look at it, but what he does with it in his house will not damage the public or the wider world.

Maria Eagle (Labour, Liverpool, Garston)

Would the hon. and learned Gentleman be making a similar distinction if the images were used to groom real children for abuse?

Edward Garnier (Conservative, Harborough)

The Minister is making my point for me. There must be third party interaction to groom. The child must look at the image, and as soon as the dirty old man shows it to the child for the purposes of grooming, there is publication under my definition, because he will have made the image known to a third party. That is why we must work out whether we are trying to stop publication in various forms—by internet, e-mail or physically showing someone a hard copy document—for all the sensible, catch-all provisions in clause 49, or whether mere possession is sufficient to create a criminal offence.

Maria Eagle (Labour, Liverpool, Garston)

I accept the hon. and learned Gentleman’s point, but the image in his example is not illegal. That is the point.

Edward Garnier (Conservative, Harborough)

I am not seeking to blow the whole clause out of the water. I want to amend it in a way that deals with the public policy point that we should concentrate on. We want to protect people from being affected by other people’s revolting behaviour. The dirty old man, to whom my hon. Friend the Member for North-West Norfolk referred, may create an image for his own gratification, but as long as he does not show it to anyone else there is no public harm, which the criminal law needs to think about.

Tim Boswell (Conservative, Daventry)

Although I respect and have a good deal of sympathy with my hon. and learned Friend’s argument, will he consider the circumstances if it was unclear whether the image before the court, if action were taken, was an actual image that had involved the exploitation of a child, or a synthetic image that had not? It could even be a blend between the two. Perhaps the Minister is reflecting on that, and perhaps it is partly a reason for the Government’s thinking on the matter.

Edward Garnier (Conservative, Harborough)

Before we adjourned, my hon. Friend the Member for Daventry asked me about a situation in which there was a mixture of what might be a real image and an imagined image.

Tim Boswell (Conservative, Daventry)

I also wish to ask about the nature of the image, and the circumstances when it was taken from a live subject, which would clearly be illegal under the present provisions, or taken from a computer construction that had no human subject, which might be a matter of evidence and difficult to prove.

Edward Garnier (Conservative, Harborough)

My hon. Friend has answered his own question. Such a matter would be evidence that would have to be considered by the police and the prosecuting authority and, if it got beyond them, by the court. It is a matter of fact that someone would have to deal with at various stages of the process.

Our adjournment has enabled me to conclude that I had probably said quite enough about my first main part of the discussion on whether public policy is better served by the offence being that of possession compared with that of publication.

Madeleine Moon (Labour, Bridgend)

May I clarify matters? The hon. and learned Gentleman is pushing a fairly libertarian policy, and I want to be sure that my understanding is clear. What is being argued is that possession would not be a criminal offence, but making such material available to a third party or sharing it with a third party would be an offence. If we are talking about images of children of a sexual nature, how does that square with people growing cannabis for their own use but not selling it, or engaging with consenting adult friends in sado-masochism but not inviting those who are not consenting adults to take part? How does possession as opposed to sharing square with those contradictions?

Edward Garnier (Conservative, Harborough)

The hon. Lady is talking about two completely things. I am not sure that they need to be squared. I really do not think that I need to take the matter much further unless she wishes to explain her question better. I am talking about protecting children from abusive people. Such matters are obvious in the case of a photograph because to take a photograph of the sort that might be described under clause 49(7), active participation is needed and whether it is willing or otherwise makes no difference. The active participation is needed of an immature human being—a child. To draw a real individual in a way that would come under subsection (7), a real individual would be needed.

An individual who sits in his back shed and constructs for himself, for his own gratification and that of no one else, an imaginary image strikes me as something that does not affect the wider public, although that is a matter of debate. Public policy needs to bite at the moment that the person makes the image available to third parties and the effect of the grossly offensive or disgusting image impinges on a third party. I am not sure that such matters have anything to do with smoking cannabis in private, taking heroin in private or engaging in other illegal activities in private. We are worried about where the balance lies. Should it lie in outlawing the simple possession of disgusting, obscene images created by oneself for oneself or should we outlaw them only when they are made known to the public?

Maria Eagle (Labour, Liverpool, Garston)

Does the hon. and learned Gentleman accept that downloading from the internet a pseudo-image that is not based on a real photograph equates to possession? Many of us think of it as publication or we think about it as prior to the internet. People are not necessarily creating the images for themselves but downloading them.

Edward Garnier (Conservative, Harborough)

Yes, but that is not the case I am talking about. If I create an image that comes within the definition of a prohibited image and upload it to the internet, that is publication. The fact that it may be downloaded by one or 10 million people makes no difference because I have already published it by putting it on to the net. I am talking about people who create by drawing, or by however one does such things on computers, things for their own use, which do not go beyond that individual. The Minister’s case would come within my definition for publication.

I have said enough about the main part of my amendments, so I turn to new clause 35. Members of the Committee who have any interest in the issues will have realised without much prompting that new clause 35 is a lift from the Defamation Act 1996. The equivalent section in that Act provides a defence for people who are technically publishers, authors or editors of defamatory material but who are not blameworthy. I am using shorthand to avoid getting into a long and tedious discussion. The definition of “publisher” in subsection (2) of new clause 35 means

“a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.”

That is not strictly on all fours with the definition that I import into my amendments in relation to publication as opposed to possession. However, I do not think that much matters for the purposes of our discussion.

In new clause 35 I am seeking to protect—as to some extent clause 51 does—innocent disseminators or publishers who have in their possession material that comes within the definition of a prohibited image, which they pass on but not with the requisite criminal knowledge or intent. I say with the “requisite criminal knowledge” and “intent” because my suggestion is, as I set out in subsection (7) of the new clause,

“the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution”.

Therefore, there should be no doubt that it is for the prosecution to prove that someone is an author, editor or publisher. It is for the prosecution to prove that someone did something that removed the defence from them rather than putting the burden on the defendant to prove his innocence within the terms of new clause 35.

I shall assume that people have read new clause 35. I could run through it line by line and persuade people that it was worth including in the Bill, but I shall assume that people have read it, understand what I am about, and accept that the principles that I am enunciating are fair and reasonable and do not in any way undermine the need to protect vulnerable people, particularly children, from becoming involved, wittingly or unwittingly, in the activities covered by clause 49. Nobody would want children injured, emotionally or physically, by having to participate in the construction of grossly offensive, disgusting or obscene images, but we are talking about imaginary, unreal people, albeit made to look almost real in some computer images. I have not seen them but I am told that it can be done.

I hope that the Minister will accept the spirit in which I have advanced these amendments and explain why simple possession, as opposed to publishing in the sense that I have suggested in my amendment, is the better course.

George Howarth (Labour, Knowsley North and Sefton East)

I was grateful for the break because I was slightly confused by the arguments of the hon. and learned Member for Harborough and it enabled me to think about them in more depth. I shall try to be brief, not least because I know that my hon. Friend the Member for Wrexham is anxious that we hasten proceedings.

The hon. and learned Gentleman has got it wrong, both in terms of the Bill and the principle, in the arguments he was advancing about images of children in pornography. First, in terms of the Bill, clause 49(3) says:

“An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.”

That is the first test it has to pass. Subsection (6) defines an image, for the purposes of the clause, as

“an image which focuses solely or principally on a child’s genitals or anal region, or...portrays any of the acts mentioned in subsection (7).”

I will not go through what those acts are. I am sure everybody has had the opportunity to read them. The point I am making is that the clause makes it clear why those things are unacceptable. It makes it clear in what context they are unacceptable. I do not understand why the hon. and learned Gentleman is advancing what appears to be, if he will pardon the phrase, a somewhat existential argument.

Edward Garnier (Conservative, Harborough)

I have obviously explained myself extremely badly. Let me make it clear that I do not approve of things such as the prohibited images. I think they are revolting. But should the criminal law make it an offence for an individual to make for his own gratification drawings or pseudo-images, which are not real children?

George Howarth (Labour, Knowsley North and Sefton East)

I had not misunderstood the hon. and learned Gentleman. I am glad that he has just confirmed that I had not misunderstood him, but my point of principle, where I differ from him, is this: the three subsections of the clause I have just referred to are all part of the process. The fact that it is not a real child in the image—that it could have been conjured from the person’s imagination—does not make it any less a paedophile activity. How can the hon. and learned Gentleman say, for example, that what the elderly gentleman who seems to have been evoked may do with an image that he has conjured up from his imagination in the privacy of his own home as part of a paedophile activity, will not lead to other things? It seems self-evident that if somebody can get gratification from that sort of activity, it may be but a short step towards involving real images of children and real activities. I honestly think that the hon. and learned Gentleman has got it wrong in principle as well as in terms of interpreting the Bill.

Edward Garnier (Conservative, Harborough)

If things lead on to other things, that will create other offences and lead that person to be guilty of them. To take a ludicrous example, the right hon. Gentleman and I may be doodling in this Committee room while other people are speaking; of course, we would not do so, but let us assume that for the purpose of this argument he and I were separately doodling the sorts of images described in the measure and that once we finished we tore them up, threw them away, and showed them to nobody. Would he expect that that doodling should lead us to be prosecuted under the clause? That is the sharp point that I am making.

I appreciate that the right hon. Gentleman may disagree with me; he may think that the act of making a private drawing should be a criminal offence, but is that what we are after?

George Howarth (Labour, Knowsley North and Sefton East)

As the hon. and learned Gentleman said, it is a ludicrous example, but I accept that he was trying to find a way of illustrating the argument. I will answer him very directly. If he doodles on the back of a piece of paper during the course of the Committee, screws it up and throws it away, but somebody retrieves it, and then it is discovered that it is grossly offensive, disgusting or of an otherwise obscene character—an image that could be of such a nature that it would be solely or principally used for the purpose of sexual arousal—what he had engaged in would be improper and should not be approved of or sanctioned by the law.

I would like to make a broader point. The hon. and learned Gentleman said in an earlier intervention—I did not get around to responding to it before he intervened on me again—that if the drawings led to something else, those offences would be subject to prosecution. What I am saying is that we want those offences prevented. If somebody is in the process of arousing themselves sexually by that process, it must be part of something. In a lot of cases, it will be part of something that will lead on to something else.

Jennifer Willott (Liberal Democrat, Cardiff Central)

The Committee is rather depleted, but we carry on the discussion. I believe that there are strong views about this on both sides of the Committee, as is evident from the contribution of the hon. and learned Member for Harborough. This is clearly a very difficult area. It becomes very clear when we are talking about photographs—it is much easier to see the rights and wrongs of that because clearly there is a victim and it is clear that that activity should be illegal.

The issues that the right hon. Member for Knowsley, North and Sefton, East just raised are confusing two different issues. I agree with a lot of what was said by the hon. and learned Member for Harborough: if we are going to ban more broadly than photographs and pseudo-photographs, we have to have very clear evidence to show that the change is needed. The suggestions put forward by the hon. and learned Member for Harborough would make sense as long as we can show that just looking at an image does no harm and does not lead to any abusive behaviour.

That leads to a dilemma: there are two opposing arguments as to how we should react to this particular case. One is that non-photographic images legitimise abusive behaviours in the minds of offenders, leading them to act out the images and display abusive behaviour—the images, therefore, pose a risk to children. The other view is that they are not photographic, so there is no victim as such, and they act as an outlet for individuals who have those tendencies and predilections—they act as a release, and therefore reduce the risk of abusive behaviour towards children.

From what I can gather, it is actually very unclear where the balance lies between those two arguments. There is not enough evidence to show us which way we should make the judgment. I understand that there is evidence on both sides, but not enough to work out which side is in the majority and therefore which we should follow.

Stephen Hesford (Labour, Wirral West)

I am obliged to the hon. Lady for giving way. Picking up on the notion suggested by the hon. and learned Member for Harborough, if a dirty old man had one image and nothing else, the prosecution authorities might conclude that there was no case to prosecute. That is one way of dealing with it, but there is another. Does the hon. Lady accept that if there were two or three images, the authorities could prosecute but the sentence should take account of the fact that there were just one or two isolated images, as the damage would be small? The protection of children demands that such images are controlled in some way. Is that not the solution?

Jennifer Willott (Liberal Democrat, Cardiff Central)

I do not agree. The hon. Gentleman refers to the harm being small, but the question is whether there is any evidence of that. Having photographs is a completely different matter because there clearly is a victim. It should therefore be illegal. If there is no evidence that non-photographic images lead to further harm, why should we make them illegal? The question is whether harm is caused as a result of owning such images; if they have an effect on people’s behaviour, we should make it illegal. However, the evidence is not strong enough to justify that. I should be grateful if the Minister were to clarify the matter.

I am a little concerned that we are legislating without any evidence, because the risk to children could increase. If the evidence showed that having images that were not photographic acted as a release, and therefore reduced the risk of harm to children, legislating could increase the risk of harm. That is why I am concerned that we are legislating without sufficient evidence.

George Howarth (Labour, Knowsley North and Sefton East)

If the image in question is grossly offensive, disgusting or otherwise of an obscene character but does not have a child as a victim, is it not arguable that, by extension, all children are victims of that image?

Jennifer Willott (Liberal Democrat, Cardiff Central)

That argument stands up only if one believes that all pornography should be illegal because it is degrading to women. I do not believe that all pornography should be illegal. The fact is that I do not want to see these images—they probably are truly disgusting and repugnant. However, the question is whether they do harm. The fact that the image is something that I do not want to see does not mean that I believe it should be made illegal. For me, that is where the balance lies.

George Howarth (Labour, Knowsley North and Sefton East)

I shall make this my last intervention; the hon. Lady has been generous in giving way. The difference between pornography that degrades women and pornography that involves children in some way is that we take the view, in law and in principle, that children cannot defend themselves. Society therefore has the wider obligation of defending them in every conceivable way. There is a difference.

Jennifer Willott (Liberal Democrat, Cardiff Central)

Absolutely. That is why photographic pornography should be completely illegal. The question is whether it does harm to a real child. I have not heard evidence that is strong enough to suggest that it does that.

Madeleine Moon (Labour, Bridgend)

Having spent a considerable amount of my professional life working with abused children, particularly those that have been sexually abused, common experience is that sexual abuse does not start with the abuse itself. Gratification starts at a low level and gradually builds. It is rare that the first action of a perpetrator of sexual abuse is to assault a child. It is because they no longer get gratification at lower levels of intensity that the need escalates. For me, this legislation is saying that we are placing the barrier of what is permissive and what society views as acceptable at the lowest possible level, so that an individual is aware right from the start that their actions are unacceptable in society and in law. In that way, we are also seeking to protect children.

Jennifer Willott (Liberal Democrat, Cardiff Central)

I am prepared to accept the point that the hon. Lady is making, which is that the matter does not start with sexual abuse and that it escalates. I absolutely accept that that is the case. However, that is not the same as saying that the behaviour of every single person who looks at an offensive and pornographic image escalates. That goes back to the point that I made a minute ago, which is whether or not having access to images such as that acts as a release to people and therefore makes them less of a risk to children. That issue is at the heart of the decisions that we need to make on the clause.

I should be grateful if the Minister would clarify a couple of points in her response. First, the Protection of Children Act 1978 makes it an offence both to publish and possess indecent images. Will she clarify why it has been decided in this legislation just to make it an offence to possess, rather than to publish? Why possess, rather than do both?

Also, there appears to be a lack of clarity—this was raised earlier—about the issue of looking at images online. That was something that I mentioned in a couple of the evidence sessions. There are two different processes. There is the issue of someone downloading images so that they have them on their computer and the fact that under this legislation, someone would be in possession of them and therefore it would be an offence. However, if someone watches a streamed image, it is held somewhere else so they never download it on to their computer. The evidence given to us by the DPP was that he thought that probably would be illegal, but I am unclear about how the legislation as currently drafted would make it illegal, because someone does not download the image. They do not possess the image; they watch it somewhere else on a remote system. I shall be grateful for clarification on that.

Overall, personally and as a party, we have real concerns about the breadth of the proposals in the Bill. A number of amendments in the next string relate to those specific points, but I shall be grateful if the Minister will clarify some of those issues.

Maria Eagle (Labour, Liverpool, Garston)

The Government take very seriously all matters relating to the sexual abuse of children. Any material that might appear to derive from or encourage such activity is something that all Members of this House should disapprove. All hon. Members know that the UK has an absolute prohibition on the production, distribution and possession of indecent photographs of children. We have recently extended the law to cover tracings and derivatives of such photographs. However, the possession of images that have no connection with photographs is not covered by the current criminal law, which is the gap that we are seeking to close with this provision.

The police have reported finding increasing numbers of such images alongside indecent photographs of children. More of those images are also being found on the internet and are often blatantly advertised as legal child pornography. I remind hon. Members that child pornography is illegal in this country and if there are loopholes, we need to close them. Police and child welfare groups have expressed concerns that such images could be used for the purposes to which my hon. Friend the Member for Bridgend referred, and lead to escalation and real harm.

Just because we cannot prove real harm to specific children at this minute, we should not allow such loopholes—effectively, created by developments in technology—to continue to make a mockery of the law that is intended to protect our children. These images are at the highest, most explicit and disgusting, unpleasant end of any spectrum that might be considered to be the end result of a doodle. They are highly detailed, explicit drawings, cartoons and computer-generated images that look real and depict horrific scenes of child sexual abuse, as my right hon. Friend the Member for Knowsley, North and Sefton, East made clear in his remarks. This is not about generally cracking down on artistic doodles or on art, but about cracking down on a loophole that the police and others who deal with child protection are increasingly drawing to the attention of policy makers and Government. We should be taking that seriously.

I will not rehearse the way in which the offence works, because my right hon. Friend did that well in his remarks. This is just to say that we are talking about the highest, most explicit, unpleasant end of things and about images that are already illegal in respect of publication under the Obscene Publications Act 1959. That answers the point made about why this provision only deals with possession: it does so because publication is already illegal under the 1959 Act. However, possession of these images at present is not illegal because of the way that they are created. We need the possession offence because we are talking about the internet. Specifying publication in the past would have dealt with this. Possession offences are a way of trying to control these images when the internet is the main means of distribution; otherwise we shall not have any control over them.

Let me move on to the amendments, about which I should like to make two major points. The hon. and learned Member for Harborough wants to turn the possession offence into a publication offence, for reasons that he has outlined. He mentioned a narrow range of dirty old men, if I may put it that way, who would be keeping the image that they create themselves very much for themselves. It would be hard to catch a person who produced an image or drawing in that way and for that to come to anybody’s attention, if that is what they did in their little back room. It would be difficult to know how that would come to the attention of the authorities. Certainly, if it did come to the authorities’ attention I would expect them to be concerned about it, because we are talking about images that are produced for the purposes of sexual arousal, primarily in those categories that it is already illegal to publish under the 1959 Act. But in recognition of the sensitivity of this matter, we require the consent of the DPP to bring prosecutions. We tried to construct the offence carefully to ensure that it captures the material that has raised the most concern.

If we remove “disgusting” from the second element of the offence—I remind the Committee that the DPP thought that although “disgusting” was not used often in legislation, he did not find it too great a concern—as the hon. and learned Gentleman suggests we do, that would reduce the clarity of the offence and detract from the formula accepted by Parliament last year for the offence of possession of extreme pornography, which has similarities to the offence we are talking about. I think that I have dealt with the point about turning the possession offence into a publication offence.

Turning to the new clause, we see no need for an additional defence. As the hon. and learned Gentleman said, that element is imported from the Defamation Act 1996 and has no precedent within the criminal law. It is a civil provision. Amending our new possession offence to a publication offence would not achieve anything. Altering the burden of proof in respect of the defences to our offence, which mirror well understood and long-established defences, is unnecessary and will place additional difficult burdens on those prosecuting the possession of these horrific images.

We ought to remind ourselves that these are the worst kind of images at the top end of unacceptability in our society and at the most dangerous end of potential to harm our children. We are determined to ensure that we protect our children and not to allow loopholes like this to make a mockery of the law. On that basis, I hope that the hon. and learned Gentleman will ask leave to withdraw his amendment.

Edward Garnier (Conservative, Harborough)

I will do so and I will not move my new clause formally. But we need to be careful. The context within which are debating this matter is the context of some disgusting images. It becomes difficult in the court of public opinion—to use a phrase which the Government now seem so fond of—to discuss this rationally. No reasonable person doubts that the sorts of things set out in clause 49 are revolting. They arouse our understandable and natural personal distaste and revulsion. I just think we need to be very careful about what we mean by “possession” Having listened to the Minister say what she meant by possession, I think she actually meant “publication.”

I suspect that beyond the practical difficulty of policing the dirty old man who creates drawings for himself and leaves them in his drawer and shows them to nobody, the sorts of things the Minister was talking about—forget the abhorrent nature of the images—are things that appear to her, if I understand her correctly, to have been uploaded on to the computer system, on to the web. To that extent, they have been published, so there is no difference between us. She seems to call that possession; I call it publication.

So I think what we need to do between now and Royal Assent is to understand what people mean by possession.

Maria Eagle (Labour, Liverpool, Garston)

Downloading.

Edward Garnier (Conservative, Harborough)

I hear the Minister say “downloading” from a sedentary position. There again, in order for it to be downloaded, it must have been placed on the web by somebody, so there is a publication on to the web address, presumably—[Interruption] It is no good the right hon. Member for Cardiff, South and Penarth coming to this debate late, and then uttering blasphemies while I am trying to explain a rather difficult issue. If he wishes to intervene to say something, I would be very happy to listen to him.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. and learned Gentleman makes the point that I just entered the Committee Room. I have not uttered a blasphemy: I expressed some surprise at the approach he is taking. I think it would surprise the general public.

Edward Garnier (Conservative, Harborough)

If the right hon. Gentleman had been here throughout the debate, he would have understood precisely what I was saying. The Minister has had the courtesy to listen to what I had to say, and I suspect there is not the difference between us that the right hon. Gentleman—who uttered what I would describe as a blasphemy—suspects.

Between now and Royal Assent we have to be careful to make sure what we mean by “possession.” As I understand from what the Minister said a moment ago, she is talking about publication. It is the transfer of an image from its creator on to the web and from the web to somebody else’s screen. That is publication. It may also happen to be possession, but publication is what we are talking about. If she leaves it as simply possession, as it is currently in the Bill, we shall be in the ludicrous position where the thought police will go around looking into people’s top right-hand drawers.

I can see what will happen. Somebody will be raided for some other suspected offence—handling stolen goods or possession of drugs—and the police will search the premises and find in this imbecile’s top right-hand drawer an image that falls within clause 49(2). He will then fall foul of being charged with that offence, albeit that that disgusting image has never been seen by anybody else apart from the person who has been raided for drugs or possessing stolen goods.

I will leave it there, but I think we need to be careful about this. I refuse to be put off the case I am making simply because the subject we are talking about is one that arouses entirely proper revulsion. But, Mr. Gale, I ask you to ask the Committee if I can shut up and sit down. I beg to ask leave to withdraw the amendment.

Clause 52

Jennifer Willott (Liberal Democrat, Cardiff Central)

I beg to move amendment 489, in clause 52, page 31, line 27, leave out ‘image (produced by any means)’ and insert ‘computer-generated image’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: amendment 490, in clause 52, page 31, line 41, at beginning insert ‘a reasonable person would consider that’.

Amendment 491, in clause 52, page 32, line 1, leave out paragraph (b).

Jennifer Willott (Liberal Democrat, Cardiff Central)

The amendments follow on from the debate that we have just had and seek to probe the definitions in the clause. The Minister has just said that we are talking about the worst, the most horrific cases and so on—the absolute pinnacle of horror. The definitions, however, are incredibly broad, so I tabled the amendments to see if there is a way that they could be tightened up.

Amendment 489 refers to

“a moving or still image (produced by any means).”

Clearly, that is a very broad definition. I understand that the Government intend to make illegal Japanese anime and particular types of cartoon that are lifelike and extremely graphic. Such cartoons that the Government have in mind are primarily computer generated. My amendment proposes to tighten the words

“an image (produced by any means)”

which could mean chalk on a board or pen on a piece of paper, and bring them closer to the Government’s original intention. We have already had a discussion about what the provision could include. It is not just hon. Members on this Committee who have concerns. In the response to the consultation, the Durham constabulary, among others, was concerned about the broad swathe of images that would be brought in, and the fact that it would include drawing as well, which was not the Government’s original intention. Therefore, my aim is to try focus down the definition.

Amendments 490 and 491 refer to how the age of the person depicted in the images is defined. The first one relates to subsection (6)(a) in which it says

“the impression conveyed by the image is that the person shown is a child”.

That is extremely subjective. What I propose in the amendment—and what I should like to draw the Minister’s response on—is to put in a reasonableness test so that rather than the decision on the image being a subjective view it is one

“that a reasonable person would consider”.

Subsection (6)(b) states that

“the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.”

Clearly, when we have a photograph of an actual person it is much easier to determine someone’s age. We can work out how old they were when the photograph was taken. When it is an imaginary figure that is drawn, a number of concerns have been raised— including in some of the responses to the consultation—that Japanese art forms in particular are often ambiguous, so it is difficult to decide how old the figure is. My amendment proposes to delete the entire subsection. I know the thinking behind it is obvious, but I am not sure how it can be properly implemented without pulling into it all manner of things that probably should not be illegal. For example, images of an 18-year-old who is dressed as a child, such as Britney Spears in a pop video, clearly is not illegal. If it was a drawing, however, it could be illegal because it would be very difficult to work out whether the person in the picture was supposed to be over 18 or under 18 and dressed up as a school girl.

Maria Eagle (Labour, Liverpool, Garston)

Has the hon. Lady looked at the images listed in the clause?

Jennifer Willott (Liberal Democrat, Cardiff Central)

No, I have not, but I know what the Government intend and they have made it very clear. However, the definitions in the Bill are much broader, so it could include all manner of things that the Government do not intend to make illegal. The Minister is shaking her head and clearly disagrees, but a number of people have contacted members of this Committee to raise their concerns about how broad the measure is. I have no doubt that the Minister’s intention is to cover the most horrific group of images. My concern is that the definitions in the Bill are vague and subjective and do not focus down to that very small group. I should be grateful if the Minister could comment on that. As these are probing amendments, I do not intend to push any of them to a vote.

Maria Eagle (Labour, Liverpool, Garston)

I will deal with the amendments, but let me just say something about the definitions. The hon. Lady said that she has not seen any of the images and does not want to look at them. I do not blame her, but let me explain the definitions, which she has suggested are far too wide, of the mischief that we are trying to deal with.

An image can be a moving or a still image. It would also include data stored by any means, for example electronic files, which is capable of being converted into an image. This means that the term image will cover material available on computers, mobile phones or other electronic devices. The law on photographic images will remain unchanged. Therefore, for the purposes of this offence, the definition of an image excludes an indecent photograph, or indecent pseudo-photograph, as defined in the Protection of Children Act 1978 and the equivalent Northern Ireland legislation.

In respect to the meaning of a child, which she has expressed some concern about, that means a person under the age of 18 years. The law covers indecent photographs and pseudo-photographs and, therefore, includes computer-generated images that appear to be photographs. The development of this new offence, as I explained before, has been prompted by the concerns of the police and child protection agencies, dealing with an emerging, serious gap in the law that they have perceived, about the rise and discovery of explicit, non-photographic images depicting the kind of horrific sexual abuse of children that all of us would want to prevent, including, for example, computer-generated images that would not meet the definition of pseudo-photographs, and explicit cartoon and hand-drawn images.

Maria Eagle (Labour, Liverpool, Garston)

The images that we are discussing, such as computer-generated images, would not meet the definition of pseudo-photographs—significantly explicit cartoon or hand-drawn images. Although the images are likely to fall foul of our publication and distribution provision, it is currently lawful to possess them. One of our major concerns is that the images could be used for grooming a child in preparation for actual abuse, and in the way that my hon. Friend the Member for Bridgend set out in her contribution to a previous group of amendments.

Amendment 489 would remove images such as cartoons or drawings from the scope of the offence. We believe that that is an unacceptable limitation. Children see cartoon images regularly in day-to-day life. They are a well-accepted form of entertainment for children, and the characters are often well known. An offender could easily exploit that familiarity, using explicit images created in such formats, and such graphic cartoon images could be a powerful grooming tool. Reducing the scope of the offences described in amendment 489 by the hon. Member for Cardiff, Central could leave explicit cartoon images in circulation and open to serious misuse, and without the provision the police would be unable to remove them from people’s possession. The amendment would create a loophole in the law and in the new offence, which would be exploited.

Amendment 491 would remove subsection (6)(b) from the definitions. Subsection (6) provides that an image of a person should be treated as an image of a child if

“the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.”

I appreciate that that last point may sound unusual, but it is important to cover circumstance in which a person may try to avoid prosecution by amending the image of a child slightly—for example, by adding antennae or animal ears, and then suggesting that the subsequent image is not a child. That is a real concern. The people who seek to exploit the provisions and to continue to create what they call legal child pornography on the internet will use every loophole to try to escape the offence. It has been carefully structured and amendment 491 could create another loophole that would render ineffective the offence that we are seeking to create. We structured the provision carefully to capture only the images that cause concern. We believe that it is a robust and sensible response to the concerns raised with us by the police and agencies at the forefront of child protection.

Amendments 489 and 491 would only water down the offence, leaving it incapable of dealing with some of the worst images available, and providing a pointer to those who wish to exploit the situation about how to avoid the law. They would leave a gap that could be easily exploited.

Amendment 490 seeks to add a further element to our definitions. It would add a reasonable person test so that an image would be treated as one of a child if a reasonable person would consider the impression conveyed by the image of the person shown to be that of a child. We believe that that test is unnecessary and unhelpful because the words in clause 52(6) are deliberately similar to those that are well established in section 7(8) of the Protection of Children Act 1978, which have helped to clarify the content of pseudo-photographs. Those definitions have been in use for some years, the courts are familiar with them, and the definitions in our new offence have been tailored to ensure continued clarity and ease of understanding. Amending the definitions in the way proposed by the hon. Lady in amendment 490 would lose that continuity of understanding and reduce the clarity of the definition. For those reasons, I hope that the she will consider withdrawing her amendment.

Jennifer Willott (Liberal Democrat, Cardiff Central)

One of the Minister’s first comments was that I had raised a concern about the definition of a child. I want to make it clear that that is not an issue that I raised. I raised a specific concern about the definition of an image and how we know the age of a person in the image. The Minister has responded to both issues, but I want her to clarify again the fundamental point, because I am not entirely sure that she understood where I am coming from or my argument.

The argument is not a libertarian one that people should be able to do what they want as long as they do not cause harm to others. That is not the argument that I am framing. We know, as the hon. Member for Bridgend said, that the behaviour of people with paedophile tendencies escalates. I absolutely accept that. However, the argument that I make is that there is evidence that access to non-photographic materials acts as a release for people who would otherwise go on and harm children.

At some point, possibly on Report, we need to return to the issue of what evidence there is about whether the measures we are debating are likely to cause more harm to children because there will not be that access to a release. I am prepared to accept the clause if the Government are able to show that there is evidence that such materials cause harm and generate more problems for children. So far, I have not seen any evidence and the Minister has not referred to any in her comments about the arguments on both sides of that debate. I am not arguing for a libertarian approach—this concerns what is best for children while not criminalising people who are not doing any harm. That said, I beg to ask leave to withdraw the amendment.

Clause 57

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment 187, in clause 57, page 33, leave out lines 30 and 31.

After the rather dark and disturbing topics that we have discussed, amendment 187 might be thought of as some sort of light relief. It does, though, have some serious aspects. Clause 57 concerns conspiracies by people in this country to commit offences in other countries. The current provision is in the Criminal Law Act 1977 as amended. It covers conspiracies to commit offences outside the UK. Clause 57 seeks to change that situation by concentrating on England and Wales as opposed to the UK. That means that it is possible to conspire in England and Wales to commit an offence in Scotland or Northern Ireland—or that is the explanation given in the explanatory notes. The Criminal Law Act has a provision that exempts from the scope of the offence people who hold office under the Crown; I will return to the matter of why that situation should exist and what kinds of people it is meant to cover. However, in terms of clause 57 and the changes it means to make to the law, that provision—which exempts those who hold office under the Crown from the coverage of the section—has a rather startling effect. The effect is—I understand from the clause—that a conspiracy to commit criminal offences in Scotland or Northern Ireland by those who hold office under the Crown in England and Wales, would be lawful. I want to know why that is the case.

Lord Hurd used to write thrillers in which the plots were based on conspiracies in Scotland to do with Scottish national politics 20 or 30 years ago. If one were to allow one’s imagination to run wild one might think that this matter is similar. I venture to suggest that, instead, it is an accident in the way that the clause is drafted. However, there is an aspect of it that makes me think that perhaps it is not an accident. That is, later on the clause endeavours to make sure that there is no retrospective effect in Northern Ireland—that the exemption does not cover the legacy cases there, since they are, of course, very politically sensitive. If that is the case, the question still arises as to why there should be this exemption for conspiracies by servants of the Crown when it comes to crimes that may have been committed in Scotland and Northern Ireland from now on. That is the first point.

The second point is what is the interaction between this provision and section 7 of the Intelligence Services Act 1994, the provision that is sometimes called the James Bond clause? Section 7 of the 1994 Act allows the Secretary of State to authorise acts—which might otherwise be illegal—outside the British Isles, in cases where what is being done is necessary for the proper discharge of a function of the intelligence service. The provision was controversial at the time and it still is, especially in light of accusations around Binyam Mohamed, and similar cases.

Nevertheless, there is an argument that section 7 of the 1994 Act is entirely preferable to the blanket provision in clause 57. Section 7 is at least limited to the functions of the intelligence service and does not apply to anyone holding office under the Crown—of whom there are quite a few in this room at the moment. Also, the second advantage is that, under section 7—I would be grateful for the expertise of the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) in this matter—there has to be a specific authorisation by a Secretary of State. Therefore, there is a line of accountability that does not exist under the clause, with its blanket immunity.

George Howarth (Labour, Knowsley North and Sefton East)

The hon. Gentleman has answered his own question. The reason why those who hold office under the Crown are presumably included is that they often have to authorise the sort of activities that the hon. Gentleman is referring to.

David Howarth (Liberal Democrat, Cambridge)

That is precisely right. However, what I am asking now—we are discussing clause 57—is would it not be better to not have the blanket immunity that the clause is offering, but to rely rather more, or exclusively, on the specific authorisations that exist under section 7? We might be in a situation where time has moved on. There used to be idea that no one referred to the Secret Intelligence Service; we pretended that it did not exist. At that time, we used to pass statutes that gave blanket immunity to those who held office under the Crown as a kind of euphemism for the Secret Intelligence Service.

We have grown up since then. We now have specific legal provision for the Secret Intelligence Service, including section 7. Should we modernise that provision by leaving out the blanket immunity and relying instead on the more recent arrangements?

Maria Eagle (Labour, Liverpool, Garston)

As the hon. Member for Cambridge has explained, amendment 187 would remove proposed new subsection (16) of section 1A of the Criminal Law Act 1977 inserted by clause 57. The proposed new subsection is a re-enactment of an existing provision, as he spotted. It was inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998 into the earlier enactment. The purpose of the provision is not, as some might fear, to give all civil servants or, indeed, anyone else carte blanche to break the law. It is more in line with what he said. He hit on an important point about the breadth of the exemption under the provision, with which I have some sympathy.

I shall say something about such matters, but first I want briefly to explain what we want to do with the clause. It corrects a small anomaly in the law of England and Wales in relation to conspiracies to commit criminal offences within other parts of the United Kingdom. At present, there is no offence of conspiring in England and Wales to commit an offence in Scotland or Northern Ireland, whereas it is an offence to conspire to commit an offence in England and Wales or outside the United Kingdom. Clause 57 will amend section 1A(2) of the 1977 Act by replacing “the United Kingdom” with “England and Wales”, which is correct.

The clause will widen the scope of the first condition under section 1A(2) of the 1997 Act, which applies only to agreements by two or more people to pursue a course of conduct that would involve one or more of them in an act or the happening of an event intended to take place outside the United Kingdom. It will ensure that the condition is satisfied when the act or event is intended to take place outside England and Wales, thus including acts in Scotland or Northern Ireland.

The clause will have the practical effect of ensuring that conspiracies in England and Wales to commit a crime within the UK can be prosecuted in the most appropriate jurisdiction, for example, where most of the evidence relating to the conspiracy is to be found and where investigatory resources are focused. However, I have some sympathy with the argument of the hon. Gentleman. The exemption from the law in such matters raises complex and sensitive issues. There has been a change throughout the years in the way in which it is expressed, so there is the matter of how it should properly be expressed in the context of the current provision.

We need something that deals with the matter. We are planning a wider review of the laws on conspiracy and attempts, which the Law Commission is working on and will be reporting on later this year. We need to look at whether the existing provision remains the right one or whether things have moved on since Parliament enacted it. A different formulation might be preferable. We have not reached a final conclusion on that yet because the Law Commission is still on the work that we asked it to do. We believe that the task goes beyond the narrow remit that we have given ourselves under the clause to correct the anomaly that we have spotted.

I suggest to the hon. Gentleman that the future work on such matters that the Law Commission is conducting will provide a better context within which to deal with that very issue in the wider range of its appearances on another occasion. However, we cannot leave out a provision in respect of the security services from the clause, which is why it is so drafted.

Edward Garnier (Conservative, Harborough)

I am not asking the question aggressively. I just want to be clear. As proposed new section 1A(16) is drafted, it gives the Foreign Secretary immunity from prosecution if he arranges for a member of MI6 to assassinate someone overseas and gives the Home Secretary immunity if he or she conspires with a police officer or an officer of special branch to kill someone here. Have I misunderstood the breadth of the immunity?

Maria Eagle (Labour, Liverpool, Garston)

There is no doubt that the old way of expressing things is probably unacceptably wide in the current context. That is basically the point that the hon. Member for Cambridge was making by tabling his amendment. I said that I have a lot of sympathy with what he said, but because the Law Commission is working on the wider point in respect of conspiracies generally, we are not yet in a position to be clear about the best way to deal with such matters. The clause cannot proceed on to the statute book without some immunity. We understand the argument, and we want such a measure in place now, but we want the Law Commission, during its work, to look at it in a much wider sense. It will report later this year on how best we should handle the matter.

David Howarth (Liberal Democrat, Cambridge)

I am interested in what the Minister is saying. Will the Law Commission’s work cover precisely the point that I have been making about the Secret Intelligence Service and the future service? If so, I should be happy to let the matter drop.

Maria Eagle (Labour, Liverpool, Garston)

I am getting some strange signals—it is getting late, Mr. Gale. My understanding is that it is covering the whole range. It might help if I wrote to the hon. Gentleman, when we have all had time to clear our heads tomorrow morning, with a specific answer to that question. My understanding is that the work that is being done is wide enough to enable the Law Commission to deal with this. We are not in a position to deal with it today with the Bill, but we do not want to let this anomaly go ahead, which is why we are using the existing wording. I have accepted and do accept that it may be too wide and that it is something we may need to return to as soon as we have a settled view on the modern language we should be using in respect of all this. I hope that satisfies the hon. Gentleman.

David Howarth (Liberal Democrat, Cambridge)

On that basis, I beg to ask leave to withdraw the amendment.

Clause 58

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss new clause 36—Guidance on offences involving hatred on grounds of sexual orientation—

‘(1) The Secretary of State must issue guidance explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.

(2) When considering whether to consent to a prosecution for an offence falling within subsection (1), the Attorney General must have particular regard to—

(a) guidance issued under subsection (1), and

(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.’.

Edward Garnier (Conservative, Harborough)

I shall be very brief. I do not want to talk about the substantive law that is revealed by that section of the Public Order Act which the clause seeks to delete. I just want to complain about the way in which this has been introduced. Despite the fact that when published, when discussed on Second Reading and when debated in Committee, the Criminal Justice and Immigration Bill 2008 made no mention of a crime of hatred against persons on grounds of sexual orientation, it was drawn into the Bill on Report. We spent about an hour and a half dealing with matters that had not been in the Bill in Committee, one of which was this provision and another was the extension of the banning of strikes by the Prison Officers Association. They came in and they took up half of the available day for the Report stage.

Nevertheless, we dealt with the new offence of hatred against persons on grounds of sexual orientation as best we could on that occasion. When the Bill went to the other place it was amended to include what I loosely call the Lord Waddington clause, which made express provision for free expression and so on. As I said a moment ago, I am not going to discuss the merits or demerits of the new law itself, but in order to get the Criminal Justice and Immigration Bill through and to achieve Royal Assent by a particular time to allow the Prison Officers Association strike ban provision to come through, the Government entered into a deal. They entered into a deal with our party and with other parties too. One part of that deal to prevent them from being embarrassed in relation to the ban on prison officers’ strikes was to accept the Lord Waddington clause.

As it happens, I do not think that this provision has yet come into force under the Public Order Act 1986. I do, however, think it is pretty shoddy of a Government to put into this Christmas tree, plum duff, compendium Bill, this clause to undo a deal which they entered into to save their own skin last year. We should look with some scepticism upon clause 58, not because I have any views about whether it is a good or a bad thing to have a new law criminalising hatred against persons on the grounds of sexual orientation, but because I think the Government are being underhand and intellectually dishonest. For that reason, we should delete clause 58 from the Bill.

David Howarth (Liberal Democrat, Cambridge)

I have a slightly different recollection of the end of the Criminal Justice and Immigration Bill. The outline that the hon. and learned Gentleman gave was in essence correct but he left out a number of points. One is that there was ping-pong between the Lords and the Commons, and the Lords inserted what was known at the time as the Waddington amendment—now section 29JA under the Criminal Justice and Immigration Act 2008—late on in the process. The Government, along with the Liberal Democrats and other hon. Members, initially resisted that provision on the grounds that it was wrong and dangerous to have a blanket exemption. The way in which that clause—now section—was drafted, especially as it refers to urging people to change their sexual behaviour, was in danger of crossing the line between saying and doing things.

I had a further concern that it would be possible for a code to develop where people whose intention was to be threatening would develop an intimidatory language that technically stayed within the words of the clause. I had and still have doubts about the wisdom of inserting a clause that says

“for the avoidance of doubt”

when there was not much doubt about what the law itself was in terms of intention and threat.

As the hon. and learned Gentleman said, the time pressure was largely created by the Government because of the situation in the prisons, and eventually they gave way on the Waddington amendment. My memory of it is that that was unwilling, to say the least, and that from what Ministers said and from the way that they acted at the time, I had no doubt that at some appropriate time Ministers would invite Parliament to revisit that issue, and I am glad that they have, so I am fully in support of clause 58.

The only thing that I would add is something that I was trying to achieve at the time, which I thought might even achieve some sort of all-party agreement, perhaps not in the Lords but at least in the Commons, which is that statutory guidance could be issued to the Attorney-General on how prosecutions under this provision should proceed. That should be done to give comfort to the many people who in many cases have wrongly been given the impression that there will be a large number of unreasonable prosecutions under this legislation. There were some examples of ludicrous behaviour by certain police officers, not under this legislation, but through legislation that is much easier to prosecute under, such as that relating to general public order. I put forward a serious of proposals for that guidance, and I would have put forward new clause 36 at the end of the ping-pong had I thought about it more. The new clause that I put forward at the end was never selected. At the end of the ping-pong I urged the Government to adopt it as a Government new clause, as that would have meant that it got through.

Edward Garnier (Conservative, Harborough)

I cannot remember whether the hon. Gentleman was on the Committee of the Criminal Justice and Immigration Bill. On Report, I tabled a slightly different new clause to his new clause 36, with a view to persuading the Government that questions to do with the European convention and so on should be uppermost in the minds of prosecuting authorities before a prosecution is brought. That was not acceptable to the Government; they wanted to keep the offence simple. I have some sympathy with new clause 36 as a matter of principle, but if the Government are going to behave as they are doing with clause 58, I do not see much chance of new clause 36 being any more attractive to them than my attempt was.

David Howarth (Liberal Democrat, Cambridge)

Again, that is not my recollection of what happened. My recollection is that the Government were sympathetic to the notion of guidance but that the time scale was short and it was difficult to reach agreement on how it should have been framed. The hon. and learned Gentleman is correct; he put forward a number of useful and attractive amendments and suggestions, and in new clause 36 I have, in effect, adopted a very broad aspect of what he suggested. The version of new clause 36 that I proposed, which was not selected at the end of the ping-pong on the Criminal Justice and Immigration Bill, was about the importance of the rights of freedom of expression and speech. However, it did not incorporate a number of other important aspects of human rights legislation, as the Conservative party amendments did.

I thought that the Conservative party contribution to the debate was useful in pointing out that freedom of religious expression is protected by human rights legislation, not just in terms of freedom of expression but through other aspects of that legislation as well. That, and the comments from the hon. and learned Gentleman, explains why subsection (2)(b) is the way it is, and not the way it was at the end of debates on the Criminal Justice and Immigration Bill.

The object of the exercise is to provide reassurance to citizens who believe—for the most part wrongly, in my view—that their religious freedom is interfered with in an unacceptable way by the legislation that we passed in that Bill, which I strongly supported. We can offer that reassurance without undermining the force of the legislation in any way. I urge the Government to consider new clause 36 as a supplement to clause 58. I make it clear that I will ask for a vote on new clause 36 only if clause 58 stands part of the Bill.

Henry Bellingham (Conservative, North West Norfolk)

I want to add one or two quick points. First, I agree entirely with my hon. and learned Friend that we need laws to protect lesbian, gay, bisexual and transsexual people from threats of violence. However, on the other hand, we also need to protect free speech in this country. I was impressed by the compelling arguments advanced in two articles, one by Matthew Parris and the other by Peter Tatchell, written at the time of the original clause in the previous Bill.

There is a parallel saving clause in the Racial and Religious Hatred Act 2006, section 29J, which says:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents”

and so on. It is similar to the saving clause that became known as the Lord Waddington saving clause. Surely, if we are going to have a saving clause on the statute book for one important Act, we should have one for this Bill, which will become an Act in due course.

I believe strongly in freedom of speech and I pick up on a point made by the hon. Member for Cambridge. In the past, the police have been pretty heavy-handed with various people who have been reported or complained about. We had the case of Joe and Helen Roberts, who were advised by the police that they risked prosecution when they simply expressed public concerns about sexual orientation literature in a council library. The Minister will recall that Sir Iqbal Sacranie, the former head of the Muslim Council of Britain, was investigated by the police after a complaint was passed to the CPS about his expressing concerns, on Radio 4’s flagship “Today programme, about sexual behaviour and civil partnerships. The author Lynette Burrows was interviewed by the police after a complaint was made about remarks that she made, on Radio 5 Live, about same sex couples adopting.

I appreciate that the Minister will say in her response that there is a high threshold for this new offence, and I am sure that she will explain that to us. However, I still believe that without a saving clause, we will have an attack on free speech. I deplore, as does my hon. and learned Friend, any threatening or abusive behaviour that is likely to stir up any form of hatred against the class of people under discussion. However, the Minister should look carefully at Peter Tatchell’s comments in his article a year ago. I support my hon. and learned Friend’s comments.

Maria Eagle (Labour, Liverpool, Garston)

Needless to say, my recollection of what happened last year in that last great law Committee on which we served, is a little closer to the hon. Member for Cambridge’s recollection than to that of the hon. and learned Member for Harborough.

The clause completes what I would refer to as unfinished business from last Session’s Criminal Justice and Immigration Act 2008. I made clear at the time of the denouement that it was unfinished business that would be returned to. I agree with the hon. Member for Cambridge that the Committee ought not to be that surprised that we are returning to the matter at a suitable opportunity, which this is.

The Committee should remember that the Commons had a majority of 202 for removing the Waddington amendment—or the saving clause, as Opposition Members have referred to it—and saw no case for having such a provision attached to an offence with an extremely high threshold. The hon. Member for North-West Norfolk suspected that I might deal with the threshold of the offence, and I want to remind the Committee that the incitement to hatred offence under discussion has a very high threshold. It only captures words or behaviour that are threatening and intended to stir up hatred—not that are likely to, or that might, if someone takes them the wrong way, stir up hatred. That is the highest threshold that one could think of for this kind of offence.

On that basis, we believe that the offence is clear, without any saving clause, and the balance is correct for freedom of expression. It is important that we preserve freedom of expression, but it has never been absolute in this country. Offences of speech should be clear, and that is one reason why we wish to remove the Waddington amendment from the statute book. We want to ensure that it does not create the sort of loopholes about which the hon. Member for Cambridge has expressed concern.

James Gray (Conservative, North Wiltshire)

I am sure that the Minister is right to say that the threshold for the offence is quite high, and therefore that the chance of a successful prosecution is relatively slight. Indeed, there have been none in the past, and there are unlikely to be any in future. That will not stop complaints being made against certain people, particularly street preachers and fundamentalist Christians of a certain kind, who make remarks about homosexuality—remarks with which I disagree—that could be interpreted by some as inciting hatred. That could result in arrest and police interrogation, which has happened on a number of occasions, even if it does not result in a successful prosecution. That in itself is extremely worrying, as these people believe that they are expressing the views of their Churches as well as of themselves.

Maria Eagle (Labour, Liverpool, Garston)

The offence has a high threshold intentionally. We want to reassure people that it will not prevent them from saying what they think about their religious beliefs, which are protected under our laws. It captures only words or behaviour that are threatening and that are intended to stir up hatred. The person using the words or behaviour has to have the intention of stirring up hatred against a particular group on the grounds of their sexuality. The offence will capture only the most extreme behaviour. Having a clear and high threshold provides the right balance between protecting freedom of expression, which is tremendously important, and signalling the proper protection of those groups that have been vulnerable to such attacks in the past.

Henry Bellingham (Conservative, North West Norfolk)

The Minister is arguing her case cogently and eloquently. Does she agree that the Association of Chief Police Officers has a low threshold when it comes to investigating complaints? What discussions will she be having with her Home Office counterpart? Should the clause reach the statute book, we do not want endless complaints being made and police time being wasted investigating various imams, Christian preachers and people such as Sir Iqbal Sacranie, who may get a bit carried away on the “Today” programme. Surely, we need a higher threshold for such complaints.

Maria Eagle (Labour, Liverpool, Garston)

I shall comment further on that question. I said last year, as I have done today, that there is a role for proper guidance. We must ensure that guidance is produced by the right people at the right time to deal with the sort of concerns expressed by the hon. Gentleman and the examples that he used earlier.

The Joint Committee on Human Rights agrees that the balance in respect of the threshold for the offence is right, as does the Equality and Human Rights Commission. Apart from the high threshold, procedural safeguards ensure that the right balance is achieved. The CPS will prosecute only if it is satisfied that a prosecution is in the public interest, and the Human Rights Act 1998 specifies that the police, the CPS and the court must act in a way that is compatible with convention rights. For those reasons and others, we concluded that no further provision was needed in order to protect freedom of expression. Indeed, we believe that the savings provision inserted into the Criminal Justice and Immigration Act 2008 in the other place does the opposite of clarifying the situation; it muddies it. That is why we said that we would come back to it, which is what we are doing.

I realise that there are strongly held views across the House and the Committee. No doubt, we will hear them being rehearsed again in later stages of the Bill, both here and in the other place. We heard some examples from the hon. Member for North-West Norfolk of what might be described as over-zealous police investigatory action in particular instances. We intend to issue short explanatory guidance about the offence, which I gave an undertaking to do during the passage of previous legislation. The CPS will issue guidance to prosecutors, and we understand that ACPO is currently revising its hate crime manual, which will include operational advice about the offence of stirring up hatred. With the procedures in the proposed guidance, there is even more reason to believe that the section on freedom of expression is not necessary.

The hon. Member for Cambridge has tabled in new clause 36 another formulation of what we ought to be looking at in order to make sure that there is full understanding of the offence. It is not for us to issue operational guidance on the offence as a Department; it is, properly, a matter for the police and the CPS. I will, as I have said previously, make sure that I consult them properly on how to deal with those matters, because we want to prevent—

David Howarth (Liberal Democrat, Cambridge)

I can see what the Minister is saying about the police. Operationally, the police are independent of political authorities, although the increasing role of ACPO needs to be looked at. The same situation is not true to the same degree with the CPS—at least that is the Government’s usual position. Does she see the distinction between the two?

Maria Eagle (Labour, Liverpool, Garston)

The CPS issues guidance to prosecutors, and there are certainly arrangements within the Ministry of Justice, the Home Department and the Attorney-General’s office, on a tripartite basis, to make sure that we consult properly on the best way of doing those things. We will be talking directly to the CPS about precisely what the guidance should say, and we will also talk about that via the Home Department. I hope that I assured the Committee that there will be useful guidance.

I do not wish to accept new clause 36 at this point, but I accept the motivation behind it—it is important to have a proper understanding of new laws as they come into force. Where there is evidence of a lack of understanding, we should seek to address it at the earliest possible stage. I ask the hon. Gentleman not to press his new clause, but I take his point on board and value the support that he has expressed for the clause.

David Howarth (Liberal Democrat, Cambridge)

I thank the Minister very much for what she has said and assure her that I will not seek to press new clause 36 at this stage.

Maria Eagle (Labour, Liverpool, Garston)

I hope that the Opposition can find it within themselves to support clause 58.

Edward Garnier (Conservative, Harborough)

Let me make my position clear. The way in which clause 58 has arrived in the Bill is, for the reasons that I have already explained, reprehensible—I will not go over that again. As the Minister will recall, when the matter was voted on, on Report and in the various Lord’s amendments—[Interruption.]

Roger Gale (Conservative, North Thanet)

Order. If members of the Committee wish to have private conversations please go to the benches outside.

Edward Garnier (Conservative, Harborough)

The Minister will recall that when the issue was serially discussed on the ping-pong, it was a free vote issue for my party—I do not think it was for her party, but it certainly was for ours—and I am not going to press my resistance to clause 58 today.

James Gray (Conservative, North Wiltshire)

I am.

Edward Garnier (Conservative, Harborough)

What my hon. Friend does is entirely a matter for him. The Minister should realise that, simply because I am not going personally to demand a vote on clause 58 stand part, does not mean to say that we are not deeply disappointed by how the Government have reneged on the deal to save their anti-strike clause. I know the hon. Member for Cambridge takes a different view, but that is politics.

Clause 59

Edward Garnier (Conservative, Harborough)

I beg to move amendment 403, in clause 59, page 34, line 16, at beginning insert

‘in relation to the offences listed in subsection (2)(a) to (d),’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: amendment 404, in clause 59, page 34, line 18, at end insert ‘or attempted murder’.

Amendment 74, in clause 59, page 34, line 19, at end insert—

‘(c) grievous bodily harm with intent contrary to Section 18 of the Offences Against the Person Act 1861.’.

Amendment 406, in clause 59, page 34, line 19, at end insert—

‘(c) an offence under section 18 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm with intent);

(d) an offence under section 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm);

(e) an offence under section 16 of the Firearms Act 1968 (possession of firearm with intent to endanger life);

(f) an offence under section 16A of the Firearms Act 1968 (possession of firearm or imitation firearm with intent to cause fear of violence);

(g) an offence under section 18 of the Firearms Act 1968 (carrying firearm or imitation firearm with intent to commit an indictable offence or to resist arrest);

(h) an offence under section 19 of the Firearms Act 1968 (carrying firearm in public place).’.

Amendment 75, in clause 59, page 34, line 20, after ‘death’, insert ‘or injury’.

Amendment 405, in clause 59, page 34, line 20, after ‘death’, insert ‘, wound, or grievous bodily harm’.

Amendment 76, in clause 59, page 34, line 20, leave out ‘or both’.

Amendment 77, in clause 59, page 34, line 23, at end insert—

‘(c) any other weapon or means of causing injury including but not limited to hands and feet.’.

Clause stand part.

Edward Garnier (Conservative, Harborough)

We can return to business as usual and deal with some criminal law, which may or may not attract greater public interest.

The amendments can be described briefly, because they all seek to achieve the same purpose, which is to widen the ambit of the qualifying offences set out in clause 59(2). We are talking about investigations of criminal offences in which it is thought appropriate that those helping with the investigation should be provided with some form of anonymity during the course of the qualifying criminal investigation. That relates to clause 61, which we will deal with shortly. Applications can be made to the court to secure an investigation anonymity order.

The intentions behind clause 59 were explained to us, I think, on Second Reading and perhaps also during the evidence session featuring Government Ministers. The Government are concerned that gang crime is going undetected or is not being prosecuted because people are scared to come forward and identify themselves as potential witnesses; that is, as people who have seen, heard or have other relevant evidence to give in relation to offences and to identifying the people who have committed them.

At the moment, under clause 59(2) the Government restrict themselves to outlining the offences of murder and manslaughter. It seems to me that if it is right to have investigation anonymity orders, it is right to extend their ambit beyond offences of murder and manslaughter. Gangs do not just kill people; they also hurt them and inflict non-fatal injuries.

That is why in amendments 404, 74, 406, 75, 405, 76 and 77 we are attempting to increase the types of offence that are covered within this chapter of the Bill. Amendment 406 is probably the widest example, but the others follow the same pattern. Of course, some of the amendments are consequential and adjust the language of the clause to fit the amendment.

Let me go through amendment 406 to explain broadly the principles behind our thinking. What we intend to do through this amendment is to add, at the bottom of clause 59(2)(b), the following subsections. Beyond murder and manslaughter—amendment 404 already seeks to insert “attempted murder”—we suggest:

“(c) under section 18 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm with intent);

(d) an offence under section 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm);

(e) an offence under section 16 of the Firearms Act 1968 (possession of firearm with intent to endanger life);

(f) an offence under section 16A of the Firearms Act 1968 (possession of firearm or imitation firearm with intent to cause fear of violence);

(g) an offence under section 18 of the Firearms Act 1968 (carrying firearm or imitation firearm with intent to commit an indictable offence or to resist arrest);

(h) an offence under section 19 of the Firearms Act 1968 (carrying firearm in public place).’.

All those offences are the sorts of things that, in addition to murder and manslaughter, disobliging members of gangs occasionally do, so it would be sensible to add to subsection (2) if not in those exact terms, then in something similar to them.

Amendment 77 deals with the same clause, of which subsection (3) states:

“The condition in this subsection is that the death was caused by one or both of the following”.

Our amendments would change the provision so that it reads that

“the death or injury was caused by one or both the following—

(a) being shot with a firearm;

(b) being injured with a knife;”—

and thirdly, by including amendment 77—

“(c) any other weapon or means of causing injury including but not limited to hands and feet.”

I have had the misfortune to try any number of cases where people have been severely beaten up by people kicking and punching them, and, beyond guns and knives, there are other forms of weapons, too, such as blunt instruments and domestic appliances—saucepans, frying pans, you name it, Mr. Gale, these unattractive people will lay their hands on anything that they can get hold of to wreak terror. It strikes me that if the clause is to do what it is supposed to do, which is make it easier to prosecute and to bring adducible and relevant evidence to court, it would be sensible not to limit it to murder, manslaughter, firearms and knives, but to extend it as I have suggested.

George Howarth (Labour, Knowsley North and Sefton East)

I have listened to what the hon. and learned Gentleman has to say, and I have a great deal of sympathy with it. From personal experience in my part of the world, I must say that, often, the most lethal weapon is a baseball bat.

Edward Garnier (Conservative, Harborough)

Yes, and at the moment, one cannot get an investigation anonymity order when the terror on the estate or in the locality has been caused by gangs riding around on motorbikes swinging baseball bats. I entirely take on board the right hon. Gentleman’s point, and I hope that, if the Government resist my amendment, he will be able to twist their arm—possibly with a baseball bat.

David Howarth (Liberal Democrat, Cambridge)

My main concern about the provisions is whether they will work—whether they will change behaviour. But, if the Committee will forgive me, I shall reserve my remarks about that until we reach amendment 463 later in the process.

At this point, I want to express my concern about the way in which the clause, in particular, but this whole chapter in general, seem to work. The Bill, as drafted, means that the investigation anonymity order applies in only a very narrow set of cases—only to the most serious crime, only with regard to a very specific group of offenders and only to so-called gang offenders, although the definition of gang is not entirely satisfactory, so we will deal with that later on. It seems that the narrowness is somewhat arbitrary, which is the main thrust of the amendments tabled by the hon. and learned Member for Harborough. Why does the Bill provide only for those specific offences and not for the offences that he proposes? And why does it provide only for those particular groups of potential offenders? Further on in the clause, we see that apparently arbitrary narrowness is combined with enormous powers to expand the scope of the legislation later.

We will discuss that specifically when we discuss the next group of amendments, but I want to say something about the conjunction of the immense arbitrary narrowness and the power to introduce much broader powers. That is not a good way to legislate, unless there is some sort of pilot to test it out and see whether it works. However, nowhere along the line have the Government said that that is how the measure will operate. I am interested in the Minister’s view on how the legislation will develop in the next few years, and why the Government have chosen such a method.

The amendments tabled by the hon. and learned Member for Harborough have several origins, including the suggestions put forward by Justice. However, Justice’s suggestions did not stop at the measures that he has proposed. They also included proposals to narrow the power to expand the scope of the legislation, which we will propose in the next group of amendments. I am addressing the same problem that Justice is addressing. Why is there a combination of arbitrary narrowness and a great power to expand?

Maria Eagle (Labour, Liverpool, Garston)

Clause 59 creates, along with other clauses in the chapter, a new tool in the battle against witness intimidation. The clauses underline our determination to get to grips with gang and gun crime. The purpose of the new investigation anonymity order is to encourage witnesses who are in fear of reprisals to come forward at an early stage of an investigation, safe in the knowledge that their identity will be kept hidden.

Some members of the Committee, including my right hon. Friend the Member for Knowsley, North and Sefton, East and I, have come across such problems and will have gang-related crime issues in their constituencies. Of a number of characteristics, gang-related crime tends to be localised to estates or is otherwise geographically limited. Some of us are concerned that if the authorities, especially the police, do not get a grip of it, it will be possible for entire geographical areas to be effectively outwith their control within a few years.

I know of a number of cases. One case from the other side of Liverpool from my constituency—the killing of Rhys Jones—hit the national headlines. It illustrated well that the climate of fear that can be created in a place by the rise of gang-based intimidation and killing can have a real impact on the capacity of the police to bring to justice those engaged in such behaviour.

The hon. and learned Member for Harborough and the hon. Member for Cambridge both asked why the proposed new investigation anonymity order is limited in the Bill. The reason is that we do not want to see them extended to the entire criminal justice system. During the passage of the emergency legislation on witness anonymity last year, which, as promised, we are re-enacting in this Bill, a big concern expressed in the House and in Committee was that introducing anonymity as a matter of course into criminal proceedings was not desirable from the viewpoint of doing justice to the defendant, or from the viewpoint of the fine old common law principles that have been in existence for a very long time to ensure that defendants can confront their accusers.

We always have to get the balance right, but we are talking about a stage before a case gets to a court or is anywhere near being tried. As this tool is novel, we want to ensure that we introduce it carefully and that it has a useful purpose to fulfil. We hope that it will work, and we think that it will contribute. Obviously, we have not yet tried it in practice. If it does not work, we will not suggest that its use should be extended. We want to ensure that we do not introduce provisions that might leave potential defendants without proper safeguards.

There are already a number of constraints on the authorities’ ability to disclose sensitive information about witnesses, such as data protection legislation and common law confidentiality duties. However, they are not strong enough to address the severe consequences faced by potential witnesses when they are in an area in which a violent gang has committed a crime. We need to ensure that we can extend proper safeguards to witnesses coming forward to give evidence.

What sets the new order apart from the existing arrangements is a new common law offence of breaching the order. The offence is intended to reassure witnesses that they can safely offer their evidence at the beginning of an investigation when it really matters and when witness intimidation is often an issue. It will provide a persuasive reminder that at no time must information that might reveal the witnesses’ identity be disclosed outside the small circle of people who need to know about it. It is that prohibition backed up by criminal sanctions that will give witnesses the confidence to come forward at an early stage to ensure that the police can do their best to bring the perpetrators to justice.

I am glad to say that gang-related homicides remain proportionately rare and tend to be a localised problem in the country as a whole. None the less, for the communities and families affected they create a real problem. The target of the new order will be the area in which the greatest problems lie, including homicide cases that involve guns and gangs. That is why we have applied the order to those offences. The Bill targets the most obvious mischief. The offences may make available investigations into other offences in the future. If they work, it may be something that is considered. That is why the order-making power is there. I am perfectly happy to discuss with the hon. Member for Cambridge the ambit of the order-making power and whether it is appropriate.

The amendment before us greatly broadens the qualifying offences for the new investigation anonymity order. As explained by the hon. and learned Member for Harborough, we do not want, at present, a wider range of cases to be caught by the measures. During the passage of the emergency legislation last year, there was concern about the impact of anonymity becoming too widespread in the criminal justice system, and that is a concern that we all have to have. We want to focus the provisions on these particular offences at present and see whether it works. That is the explanation. We are not seeking to deny that gangs may commit other serious offences in other ways. That is clearly true and the hon. and learned Gentleman knows that from his experience; we all know that. The provisions are new, and are designed to target a specific problem. We want to see whether they work before we consider extending them.

The rest of the debate is in Hansard.