Coroners and Justice Bill

House of Lords, 26 October 2009.

Report (2nd Day)

Lord Redesdale (Liberal Democrat)

I shall confine my remarks to Amendments 37, 52 and 53. I believe that the noble Lord, Lord Renfrew, will speak to Amendment 69 in this group, so rather than steal his thunder I shall say only that I support the amendment.

The amendments that we propose deal with a major problem that has existed for a considerable period for archaeologists and others dealing with cultural objects. The Treasure Act 1996 was meant to sort out many of these difficulties, but it is still the case that objects that we believe to have been illegally excavated are available in the market or are being sold without proper provenance. Of course, the real value of these objects is knowing where they came from in the first place; it is not the beauty of these objects or the fact that they are artworks, although some are extremely beautiful and have value—they are often displayed as works of art in salesrooms and shops. What gives them their real value is their provenance; what matters is where they come from and what they can tell us about archaeological sites.

There is a real issue in this country about nighthawking. I say for those who do not know that this is the practice of going out at night with metal detectors in order to dig up objects from sites where there is no legal justification for doing so. A particularly good paper on the subject has recently been produced by English Heritage. Indeed, some of our historic monuments have been defiled by people digging up coins or metal objects for their monetary value, which completely destroys the historical value of the site.

Amendment 37 seeks to deal with this problem. When I brought forward the Dealing in Cultural Objects (Offences) Act—it started as a Private Member's Bill in another place—its purpose was to deal with the flood of objects coming in from Mesopotamia and the illegal excavations that took place after the Iraq war. We have the same problem in this country and in Europe, with a large number of objects being taken from the ground. Other countries within Europe have dealt with this issue and I hope that the Minister will have some positive words to say about how it is being dealt with here.

In the consultation on the amendment, there was some difficulty over human rights. However, there is a real issue about the human rights of those people who buy or find themselves in possession of objects that turn out to have no provenance and are therefore of questionable value. There is also cultural significance in the fact that the human rights of everyone in the country are being lowered by the destruction of our historical heritage.

There is a great deal of benefit in the amendment. I shall not go into it in great detail, but I am particularly concerned about one area. While we are concentrating on those people selling objects, there is a real issue about the internet creating a new marketplace. Objects are being dug up, put on display and sold to those interested not only in a local shop down the road but in a global market. This is causing real problems.

Amendments 52 and 53 are important, because a slight problem has been caused by the helpful changes to the Bill. There is an issue about how the legislation has been drawn up to create a duty to inform the coroner. Many people who do metal detecting take their objects to finds liaison officers. I commend the Government's work in establishing and supporting the Portable Antiquities Scheme based at the British Museum. Any noble Lord wishing to study the value of this scheme should read the fine Treasure reports, the next one of which is just about to be launched. However, if a metal detectorist takes advice on an object from the portable antiquities officer and the portable antiquities officer forgets for some reason—often they are overworked—to declare this to the coroner, the finder of the object becomes liable under the legislation, not the finds liaison officer, and could find themselves in difficulty.

This kind of issue may never come to light. However, as we have found, some objects may have a particular value not only in their metal content but in their historical value and cultural interest. If such an object was later found to be of great value, a dispute could be brought before the coroner and the offence spotted. Of course, it is not only the metal detectorists who have a fiscal interest in the object found; the landowner also does. I hope that the Government will agree that this small amendment could solve a potentially unfortunate consequence of good legislation. I beg to move.

Lord Howarth of Newport (Labour)

My Lords, I am grateful to the noble Lord, Lord Redesdale, for tabling the amendments, to which I have added my name. I am also grateful to the Government for the progress that we have so far been able to make in strengthening the provisions of the Bill that relate to treasure: agreeing after all that there should be a coroner for treasure; allowing time beyond six months for prosecutions for non-reporting of treasure; and giving the coroner power to require finders actually to deliver treasure. I am grateful also to Ministers for meeting some of us not just once but twice.

In Committee, the Government did not accept that the duty to report a find of treasure should be widened to anyone who comes into possession of it and has reason to believe that it has not previously been reported. This is an important matter, which is why we have tabled it again as Amendment 37. It was in the Government's own draft Bill in 2006.

As I understand it, the Government's reservations are twofold. They have explained that they are worried about the impracticality of monitoring and enforcing such a duty. In Committee, we attempted to explain why we thought that those fears were misplaced. As to human rights, we should certainly ensure that the amendment does not offend the ECHR, but I believe that it does not. We had a searching discussion about this issue at our meeting and our reasons for thinking that it does not offend the ECHR were set out in greater detail in subsequent correspondence. I would now add only the observation that the Treasure Valuation Committee has flexibility in allocating reward money so that up to 100 per cent of it could in principle be provided to somebody who came into possession of treasure and reported it. These matters should be considered case by case, with no preconceptions. On that basis, I think that we can satisfy the human rights requirement.

I shall not repeat what I said in Committee about the worrying indications of abuse that the British Museum's monitoring of the eBay website has brought to light, but I shall just highlight one finding of the British Museum survey. In 26 per cent of cases, the vendor stated that he had no knowledge of where the object was found, from which it is obvious that there are vendors who are buying items that may be treasure without performing due diligence. My noble friend acknowledged in Committee that there was an "undoubted problem". He suggested that education and persuasion were the way forward, but I have to say that there are people for whom education and persuasion simply will not work. Amendment 37 is therefore important in requiring best practice and ensuring that the trade is more transparent.

The case of the Staffordshire hoard shows the intense public interest in archaeology. Let us suppose for a moment that the person who found the Staffordshire hoard, that metal detectorist, had not been scrupulous—he was indeed perfectly scrupulous and followed to the letter all the procedures set down under the Portable Antiquities Scheme—or let us suppose that the whereabouts of the site had been prematurely leaked, as all but happened with the BBC. We can imagine that people might have been feeding these important and precious objects through to dealers who were not going to ask any awkward questions in exchange for ready cash. The Treasure Act provides no protection against this. If either of those eventualities had occurred, there would have been enormous public outrage. I cannot believe that my noble friend the Minister wishes to leave important archaeological finds at risk in this way.

With the law as it is, we can at best say that the duties on third parties—people who buy, inherit or are given antiquities—are unclear, but we know for sure that, with the vagueness and the weakness of the existing legislation, landowners are being defrauded and important objects are being lost to museums.

How did it come about that important antiquities looted from the national museum in Afghanistan were dispatched to London? In 2004, customs officers intercepted hundreds of them, fortunately and to their great credit. I do not think that there can be any doubt that they were on their way to dealers in this country. London has the second biggest market in antiquities in the world, estimated to account for some 30 per cent of global turnover. The Government have a major responsibility in this field. The market in antiquities in this country needs policing, but if it is to be effectively policed there must be a watertight legal regime.

I cite one piece of unacceptable practice in the London antiquities market. In 2006, Bonhams, the auctioneers, chose to display a number of artefacts from the Sevso hoard of Roman silver and invited many people to come and see them. These objects had entered the market without any proof of their legal origin, no direct evidence of the circumstances in which they had been excavated and no details disclosed about dealings in them in the period following their discovery. There was no secure history of their ownership and no proper provenance for them. Ethically, they should not have been in the market. It was incontrovertible that they had been illegally removed from their place of origin; no country would have authorised their excavation unsupervised, their export for commercial gain or their exposure to the market, as occurred. In its invitation, Bonhams asserted that these pieces of silver were,

"suitable for exhibition in the world's greatest museums".

To acquire or exhibit items from the Sevso treasure would have been to violate all the responsibilities that a museum properly has. Bonhams was cocking a snook at the British Government and all their efforts to suppress the illicit trade. How long are the Government prepared to tolerate this kind of behaviour?

These instances and the statistics produced by the British Museum exposing cavalier attitudes, or worse, within the trade show the need for Amendment 37 and for a new offence of dealing in undocumented archaeological objects that would be created by Amendments 68 to 73. The Government have a responsibility to clean up this scene and it is urgent that they should do so. My noble friend may say to the House that we should await their review of the Dealing in Cultural Objects (Offences) Act. However, that review was promised as long ago as 2006 and we still have not had it. Perhaps my noble friend will be able to tell us this afternoon when the fruits of that review will be made available. Meanwhile, this Bill and the amendments that we have proposed provide the ideal opportunity to deal with some of the starker needs.

Finally, Amendments 52 and 53 to Clause 39, as the noble Lord, Lord Redesdale, explained, would correct an omission in the Treasure Act. The Act requires finders of treasure to notify the coroner directly. In practice, 97 per cent of finders report their finds to one of the finds liaison officers employed under the Portable Antiquities Scheme. That was what took place in the case of the Staffordshire hoard and that practice is in accordance with the Treasure Act code of practice. The problem is that the Government's code of practice is inconsistent with the law. Amendments 52 and 53 would regularise current practice, which works well and is entirely acceptable in itself, empowering the coroner for treasure to designate suitable persons to receive reports of finds of treasure. In that way, finders would be assured that they had fulfilled their legal responsibilities. I emphasise to my noble friend that there is real concern among the archaeological community and the metal detectorists about this anomaly in the law.

The requirement that the coroner for treasure should consult the British Museum in these amendments is consistent with the practice created by the Treasure Act, which appoints the British Museum in Section 9 to specific responsibilities. If my noble friend says that new regulations under the existing Treasure Act would solve the problem, I must respectfully disagree. The problem resides in the drafting of the Treasure Act itself; it is the primary legislation that needs to be amended.

If these amendments were passed, they would not bind the Government to maintain all the existing arrangements of the Portable Antiquities Scheme, although I hope that the scheme's success has been so well proved by now that neither this nor any future Government would wish to unravel it. The amendments would also ensure that the coroner for treasure was not burdened with an excessive workload, which was an anxiety that Ministers expressed at earlier stages of this legislation. There are no public expenditure implications in these amendments. I hope that the Government will be able to accept them.

If my noble friend finds that he is unable today to commit himself to accept all these amendments, because the Government have not completed their own internal discussions, I hope that he will tell the House that we will return to these matters at Third Reading.

Lord Renfrew of Kaimsthorn (Conservative)

My Lords, I support the amendment tabled by the noble Lords, Lord Redesdale and Lord Howarth of Newport. The Minister will recall that at an earlier stage of the Bill, I paid tribute to the effective activities that the Government have undertaken in trying to restrict the market in illicit antiquities. It is all the more sad, therefore, that a glaring loophole has emerged in the working of the legislation relating to treasure, which Amendment 37 seeks to close, as the noble Lord, Lord Redesdale, described.

It has become clear that many finds of treasure are still going unreported. Why is that? At present, only the actual finder has a legal obligation to report the discovery of treasure. It is quite clear that dealers are, in some cases, selling new archaeological finds without undertaking due diligence to ensure that they have been through the treasure process. There is no legally enforceable obligation at present on them to do so. Monitoring of eBay sales confirms that that is so. There is a major trade in unreported treasure. I will not speak at length about this because it has been well covered by the noble Lords, Lord Redesdale and Lord Howarth of Newport, but this is a necessary amendment to ensure that the Treasure Act works well in practice

The noble Lord, Lord Howarth of Newport, has dealt with Amendments 52 and 53, so I will proceed at once to Amendment 68. This introduces a broader group of amendments with the same purpose of reducing the trade in looted antiquities—illegally excavated antiquities—with the ultimate end of preventing or reducing the looting process. It is not restricted to finds made in the United Kingdom: the looting of archaeological sites for gain continues all over the world.

London is still a clearing-house for looted antiquities. Some auction houses continue to offer goods for sale without any indication of provenance and without any secure documentation. We thought that that might stop with the passage of the Dealing in Cultural Objects (Offences) Act in 2003, but can the Minister confirm that there has so far been not a single prosecution under that Act? Amendment 68 requires that a person dealing in an archaeological object should produce evidence to show that the object has not been unlawfully excavated. That places a duty on the vendor of knowing and stating the recent history of the antiquity. It will no longer be sufficient to say that it fell off the back of a lorry or was found in the vendor's attic.

Time is short, so I will omit my observations on the example of the Sevso treasure because that has been well covered by the noble Lord, Lord Howarth, and I agree with everything that he said. The second case to which I shall refer is as scandalous but less well known in view of intimations of libel action by the lawyers of Mr Martin Schøyen, a Norwegian shipowner. He purchased a major series of 654 Aramaic incantation bowls that had been imported into this country in the 1990s in dubious circumstances and lent them for study to a London university. When the university realised that they might be looted antiquities, it rightly set up a committee of inquiry on which I had the honour of sitting under the chairmanship of the distinguished lawyer, Mr David Freeman. We determined that they had indeed been looted from Iraq, or more precisely concluded,

"on the balance of probabilities that the bowls were removed from Iraq, and that their removal took place after 6th August 1990",

and was therefore illegal. We recommended,

"the return of the incantation bowls to the Department of Antiquities of the State of Iraq".

A copy of that report is in the Library of the House.

Despite that, I am sorry to say that the bowls were not returned to Iraq: they were returned to the custody of Mr Martin Schøyen. Under the new clause proposed in Amendments 70 and 68, lending and borrowing would both be dealing in terms of the Bill. It would be an offence to deal in undocumented archaeological objects in such a way—and so it should be: it is scandalous that the heritage of Iraq has been treated in this way.

My final case is simple and I shall be brief. On 15 October this year, Bonhams the auctioneers withdrew from its London antiquities sale at the request of the Italian Government some 10 antiquities, among them items formerly owned by the now sadly notorious dealer Mr Robin Symes. I understand that the Italian authorities had already made representations to the Home Office about several warehouses in London containing antiquities formerly in his ownership—many of them, it is alleged, illegally excavated in Italy.

What is an auctioneer in this country doing, selling antiquities without a documented provenance? It is scandalous that this practice continues, and to put an end to it is one purpose of this amendment. There are serious matters here, which demand government attention. I shall be very interested to hear what the Minister has to say.

Baroness Trumpington (Conservative)

My Lords, some people may believe in ghosts and others may not. You might be forgiven for thinking that the ghost of the late Lord Perth is wandering around the Chamber this very afternoon, because the Act of which this amendment is part was entirely due to his efforts. I was lucky enough three times to take a Private Member's Bill for treasure trove through this House and eventually—by rather foul means—managed to get the Government to introduce a government Bill. It is very interesting that this is the first time that an amendment to that Act has been moved, and I have great pleasure in supporting it. I can think of nothing which causes worse relations than what one might call stolen treasure trove.

Lord Elystan-Morgan (Crossbench)

My Lords, I wholeheartedly approve of the thrust of these amendments. It is surely entirely laudable and proper that recognition should be given to the immense public interest that is involved in all these matters. We are dealing with something that is part of the community's most essential heritage.

I rise with some apology to make a very narrow legal point. The opening words of Amendment 37 are:

"A person who—

acquires property in an object".

It is the word "property" that I quarrel with. It suggests to me, as a retired lawyer, the question of ownership or some other identifiable estate in that object. The question of property is surely, ultimately, a matter of title. That, of course, is something that might have to be decided at a later stage, so it would be premature to refer to it as acquiring property at that point in time. The noble Lord, Lord Howarth, referred once to property and three times to possession. I think that what is dealt with here is possession. If I am wrong, I apologise. It may be that a form of words dealing with both possession and the acquisition of an interest that is something short of property would be more appropriate.

Lord Henley (Conservative)

My Lords, my noble friend Lady Trumpington was quite right to draw the House's attention to the work of the late Lord Perth in his various attempts to get a Treasure Act on the statute book. I am very glad that she also drew attention to her own activities, which I think she described as having been by fair means or foul—something that she was very good at in ensuring that the Treasure Act got on to the statute book back in 1996.

The noble Lords, Lord Redesdale and Lord Howarth, and my noble friend Lord Renfrew have set out their arguments comprehensively. The Government have already introduced in Committee some amendments concerning treasure, which were, I think, welcomed by the Archaeological All-Party Group, of which I think all three noble Lords are members. The current amendments, as I understand them, deal with metal detecting—not something with which I am familiar, but I appreciate the problems that are raised by the secondary market in found items in particular. The amendments seek to remedy these by placing a duty to report treasure on those in possession of objects as well as those who find them. On the subject of possession, we should all note what was said by the noble Lord, Lord Elystan-Morgan. I am sure that the Minister will comment on that small legal point and tell us whether the amendment should be further altered at Third Reading, to place a duty to report treasure on those in possession of objects as well as those who find them.

We on these Benches are sympathetic to the arguments put forward. However, we would like to hear from the Minister. In Committee, he suggested that the Coroner for Treasure will have the power to issue a notice requiring a person to produce an object to him for inspection, examination or testing. We would like the Minister to expand on that, so that we may consider whether the power is necessary to meet the concerns of the noble Lords who tabled the amendment, who may then consider whether they want to pursue it at this stage or come back to it later.

Lord Bach (Labour)

My Lords, the House is well served by Members who are in the Archaeological All-Party Group. They serve an important purpose both outside and inside the House, and I am grateful to all of them for having spoken in the debate today. The amendments address concerns about the small minority of unscrupulous people who seek to gain from dealing in objects of cultural value. We accept that there are problems with the investigation and prosecution of these individuals. I hope that noble Lords will accept our assurance that the Government are committed to reviewing the situation.

Amendment 37 would impose a duty on acquirers of objects that they believe to be treasure to report the object to the Coroner for Treasure. There are issues around making this duty both workable and compatible with the European Convention on Human Rights. However, we believe that the issues are not insurmountable. The "narrow legal point"—to use his own phrase—raised by the noble Lord, Lord Elystan-Morgan, from the Cross-Benches, will also be taken into consideration in what I say later about what we will do with Amendment 37.

Amendments 52 and 53 seek to extend the matters to be addressed by treasure regulations made under Clause 39. As we have heard, there is concern that people following the Treasure Act code of practice would report their find to a finds liaison officer, in contravention of the reporting duty in the Treasure Act itself. We have looked at the current version of the code of practice and can see that it is possible that finders would be confused about where they should report finds. The delivery of objects thought to be treasure will be covered by the power to issue a notice under paragraph 1 of Schedule 5 to the Bill. The current review of the Treasure Act code of practice will assist in clarifying both these points.

After extremely helpful meetings with the noble Lords, Lord Renfrew and Lord Redesdale, and with my noble friend Lord Howarth of Newport, I am looking at the issues again as a matter of urgency. Noble Lords will understand that I can make no promises: I may or may not be able to offer movement on the matter. However, if noble Lords will agree today to withdraw Amendments 37, 52 and 53, we will explore what might be possible at Third Reading. I will let them know what stage we have reached in good time before Third Reading, in case they choose to take certain actions as a result of what I say.

I cannot be as helpful with Amendments 68 to 73, which would introduce a new criminal offence of dealing in undocumented archaeological objects. The new offence would add to the existing offence of dishonestly dealing in a cultural object that is tainted. That offence was introduced in the Dealing in Cultural Objects (Offences) Act 2003. The introduction of the Act showed our commitment to address the problem by facilitating the prosecution of people who trade in objects looted or stolen from buildings and excavations both here and abroad, and its provisions have an important deterrent effect. There may well have been no cases at this stage, but we believe that it has had a deterrent effect and has raised awareness of the importance of the need to make appropriate checks when acquiring items of cultural importance.

I know that the noble Lords to whom I have referred support the provisions of the 2003 Act as the national heritage of many countries is at stake. Our reluctance to accept these amendments is that we are always wary of introducing yet another new criminal offence unless there is a proven need to do so. The proposed new offences would extend to objects which have been excavated in countries other than England and Wales, which is outside the scope of the treasure system.

In addition, the duty under the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 is met in the United Kingdom by the offence under the 2003 Act, to which I have already referred, as well as the offence of handling stolen goods under the Theft Act 1968. Many professional associations now have codes of practice to which their members agree as a way of demonstrating their commitment to acting fairly, ethically and honestly. As we have heard, the Department for Culture, Media and Sport will review the operation and effectiveness of the 2003 Act. I am afraid that I cannot give a precise date, but the review will take place as soon as resources permit following consultation on the treasure code of practice, which will take place next year.

To be fair, noble Lords involved in this debate have already recognised that the provisions in the Bill dealing with treasure are a significant advance. I hope that they will be happy not to press these amendments on the understanding that, as far as we can, we will return to this matter at Third Reading, particularly to Amendments 37 and 57.

Lord Henley (Conservative)

I have an important question about timing. It has been put to me that the usual channels are concerned that we will not finish Report stage on Wednesday and might have to continue until Thursday. That being the case, it is possible that Third Reading will also be a day later. I therefore hope that the Minister will accept that there will be an extra day for the Government to consider these matters before they have to make up their mind. Timing gets very tight between Report and Third Reading and they will have to make up their mind on what to do.

Lord Bach (Labour)

I am grateful to the noble Lord, but we hope, as I am sure does he, that Report stage will finish this Wednesday, so that Third Reading can without more ado take place on the day already in the green paper. I take his point. However, if there is no date for Third Reading, it is proposed that it should be as soon as possible under Standing Orders after Report. We are conscious that Thursday is a possibility, but it is not one that we would want to take up.

We hope that noble Lords will feel able not to press their amendments on the understanding that we will return to this matter at Third Reading, when I hope that I may have welcome news for them.

Lord Redesdale (Liberal Democrat)

My Lords, I thank the Minister for his help at this stage and in our consultations to look at this matter. Obviously, on the undertaking that he has given, we will wait for his reaction at the next stage. The point made by the noble Lord, Lord Henley, that we might have to marshal our forces on a Thursday if we do not get the result we want is one to take into consideration. However, seeing the noble Baroness, Lady Trumpington, looking quite so forceful, I do not think that that will be as difficult a job as one would imagine.

During the debate, the noble Lord, Lord Elystan-Morgan, raised the issue of ownership and property. Perhaps I could ask the noble Lord, Lord Renfrew, to give him a five-hour dissertation on this very vexed issue; and he might regret raising his small legal point.

The reason we believe that this is so important is in the test that I would have for anybody who says that this is a minor point. The test would be—I open this up to anybody—to find the telephone number of the legal adviser to eBay between now and Third Reading. If your Lordships can achieve that small task, I shall obviously take it on board that this issue is irrelevant. However, if your Lordships cannot, then I expect those noble Lords to be with us in the Division Lobby if this is rejected. However, on that basis, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Schedule 5 : Offences

Amendment 38

Moved by Baroness Butler-Sloss

38: Schedule 5, page 132, line 35, leave out from "Part" to end of line 40 and insert "may authorise a police officer or any other specified person to enter and search any land specified in the authorisation and shall record such authorisation in writing"

Baroness Butler-Sloss (Crossbench)

My Lords, Amendments 38 to 40, to which I speak, are new amendments, as is Amendment 50, which is consequential upon the earlier amendments. The Coroners' Society is extremely concerned at the likely loss of the power to search and seize relevant material at an early stage, when the coroner's officer has gone to the scene of a death. It is generally the duty of the coroner's officer to remove the body. At that time, he is likely to look at what is around it and ring the coroner—sometimes in the middle of the night—to ask, "Should I remove this material?". He can get an immediate okay on that.

It is fair to say that there is some doubt over whether coroners actually have that power under common law; the fact is that they have used it. The effect of paragraph 3 of Schedule 5 is to take away from individual senior coroners the right to instruct the coroner's officer, or the police, to seize material that is neither needed for health and safety regulations, nor needed for a potential crime. That is because such a removal of relevant material will require the written consent of the Chief Coroner. One only has to think of when, in the middle of the night, someone rings up the police or the ambulance, who always rings the coroner's officer, who arrives to find a dead body. The police say, "We think that this is a suicide, and we have no power to remove any material"—because under the Police and Criminal Evidence Act they are able to move nothing that is not needed for a crime. It may not be a situation in relation to health and safety.

I am told by coroners that there are various occasions on which they would need to remove material. The Government have serious reservations about these amendments and think that they are not necessary because they would be seldom needed and can be met either by the police or by health and safety officers. That is not the view of the coroners, who are the people on the ground who require the material to be able to deal appropriately with the inquest.

Briefly, because I do not want to waste time, I shall go through some occasions when the coroners would want to do this and where no crime was likely to have occurred. They include, for instance, a suicide note, which the widow may not wish them to take away; in the absence of consent under Schedule 5, they would be unable to do so. They might wish to remove a rope or other ligature, in order that tests could be done to see whether the marks on the neck meet its shape. Again, if it is an obvious suicide the police would not remove the ligature or take away the suicide note. These are actual events that have occurred.

There may also be mobile phones showing text suicide notes, where there is some doubt; computers, with emails and visits to relevant websites; correspondence, where there may be threatening letters from financial institutions, or personal correspondence showing a state of mind, or bank statements showing considerable indebtedness and the possibility that that is why the person has taken his or her life. There may also be utility bills showing that the gas is about to be cut off. If the gas is about to be cut off, that is not a matter for the police or for health and safety regulations, but it is highly relevant to the inquest.

There are two other examples, one of which is medication prescribed for the deceased. It is often useful for the coroner if the tablets that are left are counted and a comparison made with the dispensing date. Lastly, where the deceased was using an air tank, the air tank of a companion in a diving accident can be checked to see whether the nature of the contents is relevant, as both may have been filled with the wrong air mixture. These are not necessarily matters where other organisations will have the power to remove the relevant material. It is hardly likely that the Chief Coroner will be telephoned in the middle of the night, and the need to get the written consent of the Chief Coroner or one of his deputies may lead to valuable evidence being lost.

Coroners say that they need such evidence and they are very concerned that it will be lost. They are judicial officers but under the Bill they would not have the powers of a lay magistrate, who can issue a warrant. However, coroners are unable to do so, and such a power is required to be in primary legislation. If I may respectfully say so, it seems that the Government underappreciate a real need that coroners have, and I ask the Minister to think again about the points that I have made. I beg to move.

Lord Henley (Conservative)

My Lords, I rise to comment briefly on the amendment and to say how grateful we all are to the noble and learned Baroness, Lady Butler-Sloss, for introducing it. This point was not discussed at any previous stage of the Bill either here or in another place, and she highlights a real concern on which we would very much welcome hearing the Government's views. Certainly, we will make up our minds on this matter once we have heard what the Government have to say about it.

However, I ask the noble Lord to confirm that there have been a number of cases where what was first thought to be suicide was some time later alleged to be murder. In the time between such a case being thought to be suicide and someone later thinking that it was a murder, some vital evidence was either lost or destroyed. That made it far harder to proceed with the investigation into what became a murder inquiry and, in some cases, may have led to a conviction but without all the appropriate evidence necessarily being available. Therefore, we want to hear what the Government think about this and, as I said, we are grateful to the noble and learned Baroness for raising it, although it is a pity that this has come up so late in the Bill.

Lord Elystan-Morgan (Crossbench)

My Lords, I respectfully suggest to the House that the case put forward by the noble and learned Baroness is wholly unanswerable. I am not at all sure, and certainly do not pretend to have the background knowledge to know, whether all residual powers under common law have disappeared in this case. It seems to me that they have and that therefore the powers that exist are those specifically spelt out in statute. If I am wrong, nothing is lost. It means that the status quo is still there and that, by double-banking it with the adoption of the amendment, nothing at all will be lost. However, I have a substantial suspicion that those common-law powers have gone and that the system will now be extremely cumbersome and self-defeating so far as concerns its object.

The object of a coroner's hearing is to determine cause of death. That is the basic question under common law as it was and as it is now under statute. Therefore, it is axiomatic that any piece of evidence, particularly physical evidence, that fails to be preserved when it could have been defeats the very objective of the hearing. In many cases, as indeed the noble and learned Baroness has pointed out, it would be purely by accident that such evidence is overlooked. Once it has disappeared, there is no way in which it can be recovered. In other cases, there may be bad faith when persons who have an interest in the ultimate finding of a coroners' court would be motivated to remove certain objects.

The system under statute is cumbersome and self-defeating, while the defective system under common law that still operates works. One is not asking police officers to be given wide powers, although magistrates' powers, to which the noble and learned Baroness, referred, in parallel circumstances are certainly comparable. We are asking for a power to be exercised under the imprimatur, as it were, of a senior coroner. I cannot see that that in any way infringes any principle, whereas if the amendment were not carried, it would place at risk the whole validity of an examination.

Lord Lloyd of Berwick (Crossbench)

One does not want to increase the number of persons who can authorise entry, search and seizure, but the noble and learned Baroness has made a strong case that the coroner should be able to do so in certain cases—probably a limited number—without having to go to the senior coroner for written authorisation. I therefore support the amendment.

Lord Bach (Labour)

I understand that with this group of amendments, which I am grateful to the noble and learned Baroness for moving, she is aiming to ensure that coroners have the powers of search, entry and seizure that they need to obtain evidence. We wholeheartedly endorse that sentiment, as it is vital that no important evidence is lost. I shall attempt to do my best to assure her that the Bill's provisions are adequate for their intended purpose.

The noble and learned Baroness is concerned that when the Bill comes into effect the police may for some reason stop removing evidence from the scene of death as they may conclude that items, such as suicide notes or drug paraphernalia, cannot be removed without either the owner's consent or authorisation from the Chief Coroner. She is concerned that this may lead to evidence being lost or destroyed. Her amendments therefore explicitly give coroners powers to authorise a police officer, or any other specified person, to enter and search land and seize anything or inspect and take copies of documents. They remove the requirement for the Chief Coroner or a nominated senior coroner to authorise every use of these powers. Amendment 50 makes the decision to authorise such entry and search appealable to the Chief Coroner.

We have a number of concerns, which I shall mention shortly, but I take this opportunity of offering a meeting before Third Reading—which will have to take place this week, and there is no reason why it should not—with the Coroners' Society of England and Wales, myself and my officials and, I hope, the noble and learned Baroness, to see whether we can come to some kind of accommodation on these matters. At present, I am bound to oppose the amendment, which I do not want to do unless it is absolutely necessary. It is better to come to some kind of agreement, although I make no promises. It seems as if our Third Reading debate may be almost as long as Report at this rate. These are serious issues; they must be if the Coroners' Society has concerns, and we want to resolve them peaceably rather than walking though the Division Lobbies.

Baroness Butler-Sloss (Crossbench)

I am grateful to the Minister for the olive branch, even if it is eventually cut off the tree.

First, I take the point made by the noble Lord, Lord Henley. I am extremely sorry that the amendments came so late—they did not come from me. The Coroners' Society realised that this was a lacuna in the other points that it has been making. I am very grateful to those who have supported me on these amendments. With the view that the Minister is prepared to talk to officers of the Coroners' Society, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendments 39 and 40 not moved.

Amendment 41

Moved by Lord Bach

41: Schedule 5, page 134, line 15, leave out "(criminal conduct)" and insert "(or section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53))"

Amendment 41 agreed.

Amendment 42

Moved by Lord Bach

42: Schedule 5, page 134, line 27, leave out first "may" and insert "must"

Lord Bach (Labour)

My Lords, I shall speak also to Amendments 46 and 48 in the name of the noble Lord, Lord Ramsbotham.

Paragraph 6 of Schedule 5 heightens the profile of coroners' reports to prevent future deaths, by putting the existing provision, which is currently contained in coroners rules, into primary legislation. These reports by coroners aim to improve public health and safety by identifying and publicising action which the coroner considers should be taken to prevent future deaths.

As currently drafted, the Bill stipulates that the coroner "may" make such a report if he or she is of the opinion that action should be taken to prevent the occurrence or continuation of circumstances creating a risk of other deaths occurring in the future, or eliminating or reducing the risk of death created by such circumstances.

In Committee, the late Lord Kingsland contended that it was not sufficient to confer a power on the coroner to issue a report where he or she had formed such an opinion and that in such situations the coroner ought to be under a duty to make a report. Our initial concern was that requiring a coroner to issue a report in certain circumstances could, perhaps, fetter the coroner's judicial discretion. However, having considered this matter carefully, we agree that if the coroner has formed such an opinion, we can fully understand that he or she should then have a duty to make a report. Accordingly, our Amendment 42 replaces the discretionary "may" with the obligatory "must". I believe that that is what Lord Kingsland was seeking when he raised this matter in Committee and we adopt his suggestion. I commend the amendment to the House and I beg to move. I shall respond to the amendment that I hope will be spoken to by the noble Lord, Lord Ramsbotham.

Lord Ramsbotham (Crossbench)

My Lords, I am extremely grateful to the Minister for his comments and in particular for replacing "may" with "must". I discussed the matter with the late Lord Kingsland and am aware of a frequently expressed concern. It is that in relation to Schedule 2 deaths, particularly those in custody, it takes some time to have an inquest. That frequently means that afterwards, when lessons learnt are discussed, it is alleged that during that passage of time the Prison Service may have introduced changes and that there is therefore no point in referring to a matter that took place, say, four years ago. Frequently, that is proved to be wrong because it is not always the case that the Prison Service has done what it says, or has imposed what it says ought to be in place.

It would therefore seem incumbent on a coroner, irrespective of what the Prison Service might have done, to make his report and recommendations based on the incident itself because it is the incident which will be picked up by senior coroners, the Chief Coroner and ultimately in the reports made to the Lord Chancellor.

Clause 32 states:

"The Lord Chancellor must publish each report given under this section and must lay a copy of it before each House of Parliament",

which is where Amendment 48 comes in, because I would like added to that the words,

"and take any action he or she considers appropriate in response to the report".

It may well be that in the body of the reports coming from senior coroners and the Chief Coroner are lessons learnt which should be imposed on the Prison Service, on the Police Service, on the Armed Forces or on special hospitals, through their various Secretaries of State. Therefore, the amendment is intended to refine the proposal in the Bill, rather than to propose anything new. The analysis referred to in Amendment 46 is, as I said, very much based on what we hope that coroners will report, so that all the lessons are learnt and there can be a general improvement in the systems which are subject to investigation. I therefore commend the amendment.

Lord Alderdice (Liberal Democrat)

My Lords, I simply give some support, because Amendments 46 and 48 are in my name and that of my noble friend Lord Thomas of Gresford as well as in that of the noble Lord, Lord Ramsbotham. One of the really important roles of the coronial service is investigating and inquiring into not just particular deaths and how they occurred but how we can prevent such things happening in future. A coroner may produce a verdict and assume that it is so blindingly obvious that he does not need to take the matter further, but there is an incumbent duty on him to carry that forward and report it to those who can do something about it. Therefore, we are extremely grateful to the Minister for tabling his amendment and placing it under the section on the prevention of other deaths. We regard that as extremely helpful.

Lord Henley (Conservative)

My Lords, I briefly intervene to say on behalf of my late noble friend Lord Kingsland that we, too, are very grateful for the concession from the Government. As my late noble friend pointed out in Committee, one of the primary benefits of the coronial system is its capacity to learn from mistakes. Therefore, it seems to us correct that if the coroner feels that someone is in a position to make changes which might prevent another death and has powers to do so, it ought to be incumbent on the coroner to act on that opinion. That is a simple change to make to the Bill, but one that we feel will have important consequences.

The other two amendments in the names of the noble Lords, Lord Ramsbotham and Lord Alderdice, add sensible further actions that ought to be included in the Chief Coroner's report. "An analysis of findings", as included in Amendment 46, will help to inform the Lord Chancellor of what has been going on in the coronial system during the year. On the basis that information, transparency and improvements to the service are all linked, we certainly support the amendment.

Amendment 48 also has our support. The Bill directs the Lord Chancellor to publish reports and lay them before Parliament. That should not be the extent of his obligations. If there is action which the Lord Chancellor should take, he ought not to sit on his hands. We trust that the Minister will agree to those reasonable and not particularly onerous suggestions, and we offer our support to both those amendments.

Lord Bach (Labour)

My Lords, I am grateful to both noble Lords who have spoken. Under Clause 32(4)(b), the Chief Coroner's annual report to the Lord Chancellor must contain a summary of coroners' reports to prevent deaths, and responses to them. Amendment 46 would require the Chief Coroner's annual report to contain an analysis of coroners' reports to prevent future deaths and responses to those, as well as an analysis of jury findings.

I said in Committee in response to amendments tabled by other noble Lords, and I now repeat, that we are confident that the amendments are unnecessary. Regarding an analysis of jury findings, that is because the Chief Coroner's report will inevitably contain details of findings in different coroner areas, on all such findings and not just the small minority of inquests—which we discussed the other day—where juries are summoned. This will inevitably be necessary for the Chief Coroner to assess how these are similar or vary across the country.

Regarding an analysis of reports to prevent deaths, Clause 32(4)(b) already provides for the Chief Coroner to summarise the year's reports to prevent deaths and the responses to them when putting together his or her annual report to the Lord Chancellor. I hope that noble Lords are content that in doing so for the annual report and more generally to assess differences in standards between coroners, the Chief Coroner will in any case analyse the raw data he or she receives from coroners.

Amendment 48 requires the Lord Chancellor to take any action he thinks appropriate in response to the Chief Coroner's annual report. I reassure noble Lords that this is also unnecessary because any reasonable Lord Chancellor would do this as a matter of course without being told to do so in legislation. Our tradition of Lord Chancellors leads us to believe that all future Lord Chancellors will be reasonable.

I hope that explanation, together with our Amendment 42, reassures noble Lords that the Bill already addresses their concerns about reports to prevent deaths and the Chief Coroner's annual report. To summarise, we are strengthening reports to prevent future deaths and accountability more generally by: first, putting a greater duty on coroners to issue reports to prevent deaths; secondly, ensuring that the reports are responded to; thirdly, giving the reports prominence in the Chief Coroner's annual report; and, lastly, by providing for the Lord Chancellor to support the Chief Coroner's work by publishing the annual report and raising any concerns he has about how the coroner system is operating. On that basis, I hope that the noble Lord will not move his amendments.

Lord Ramsbotham (Crossbench)

I thank all noble Lords who have taken part in this short debate and I also thank the Minister. Linked with Amendments 46 and 48 is Amendment 47, which we discussed briefly on day one. My concern about these amendments is based on experience. Ten years ago, I published a report called Suicide is Everyone's Concern looking at the way that the Prison Service was able to prevent suicides in prison. What concerned me was that year on year the same mistakes were made in different prisons all over the country because it appeared that the lessons learnt were not being spread throughout the system. It may be that different coronial areas will have different experiences and therefore different things to report, but hidden in them will be lessons that others can learn, which is the why the word "analysis" seems to be so important in the coroner looking at all the evidence in front of him. I accept that, as the Minister said, there is now "must" and not "may". I will therefore consider what has been said today and on day one.

Amendment 42 agreed.

Schedule 7 : Allowances, fees and expenses

Amendment 43

Moved by Lord Tunnicliffe

43: Schedule 7, page 138, line 43, at end insert—

"( ) A reference in this paragraph to meeting or reimbursing expenses incurred by a person ("P") includes a reference to indemnifying P in respect of—

(a) costs that P reasonably incurs in or in connection with proceedings in respect of things done or omitted in the exercise (or purported exercise) by P of duties under this Part of this Act;

(b) costs that P reasonably incurs in taking steps to dispute claims that might be made in such proceedings;

(c) damages awarded against P, or costs ordered to be paid by P, in such proceedings;

(d) sums payable by P in connection with a reasonable settlement of such proceedings or of claims that might be made in such proceedings."

Lord Tunnicliffe (Labour)

Paragraph 9 of Schedule 7 provides for regulations to make provision for or in connection with meeting or reimbursing expenses incurred by senior coroners, area coroners, assistant coroners, the Chief Coroner and his deputies, the Coroner for Treasure and judges and former judges and retired coroners when they conduct an investigation. Paragraphs 5 and 6 of Schedule 8 provide for the Lord Chancellor to pay the Chief Coroner and deputy chief coroners amounts by way of remuneration or allowances and amounts towards expenses incurred by them when performing their functions.

We have always intended these regulations to include provision for indemnifying the incumbents of these roles against costs that they incur when defending any claim brought against them in litigation and against subsequent costs or damages that they are ordered to pay. In Committee, however, the noble Baroness, Lady Finlay, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alderdice and Lord Thomas, were concerned that the word "expenses" would not include indemnifying these people against costs of damages. I agreed to see whether we could clarify this issue further.

Together, Amendments 43 and 45 make it clear that regulations may include provision indemnifying these people against costs that were reasonably incurred in or in connection with legal proceedings: including costs that the person is ordered to pay, damages awarded against the person, and sums that are payable in connection with a reasonable settlement of such proceedings. I hope that the amendments reassure noble Lords about indemnities, and I ask noble Lords to accept them.

Baroness Butler-Sloss (Crossbench)

My Lords, I thank the Minister for these amendments, which, so far as I can see, exactly meet coroners' concerns. It is very good to see that these amendments will be made.

Lord Henley (Conservative)

My Lords, I echo what the noble and learned Baroness had to say. Again, what the Government propose is very similar to what the coroners' society proposed in correspondence with us. I congratulate the Government on having managed to come up with this over the summer; it will certainly save the Minister from another meeting that might otherwise have been needed to sort out things between now and Third Reading in a diary which I imagine will become increasingly full over the next week.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I, too, thank the Minister for this concession. It was a very important issue that was very properly raised, and the Government have considered it and listened.

Amendment 43 agreed.

Schedule 8 : Chief Coroner and Deputy Chief Coroners

Amendment 44

Moved by Baroness Fookes

44: Schedule 8, page 139, line 30, at end insert—

"( ) One Deputy Chief Coroner shall be appointed with specific responsibilities for the oversight of military inquests and for the specialist training of all coroners undertaking military inquests."

Baroness Fookes (Conservative)

My Lords, the amendment would replace two amendments that I moved in Committee and that did not find favour with the Minister. I return to this without apology because, although it may be of narrow interest, it is extremely important to those who are affected.

Briefly, the background to the amendment is that, in the early days of casualties coming in from Iraq and Afghanistan, very few coroners had specialist knowledge of conflict, of the way in which wars work, and of the general ethos of the armed services. This made for difficulties that were very painful for the families who were affected by the deaths of service men and women. Fortunately, or unfortunately, practice meant that, finally, several coroners had considerable experience of these things. The difference that this made to the inquests and to the feelings of the families cannot be overestimated.

The fear is that that expertise might be lost with the passage of time, so the amendment seeks to ensure that a senior deputy chief coroner has overall responsibility for supervising any military inquest and that the coroners who undertake it have had specialist training. The Government argued that this was unnecessary because training would be dealt with in the Bill and so this point did not need to be made. That is all very well but, if it is not in the Bill or the subsequent Act of Parliament, the chances are that, with the passage of time, all this will be forgotten and the same problems will arise when there is another series of deaths from conflict.

I know that some felt that training coroners with specialist interests might make them more likely to challenge the Government where there was some possibility that the Government were to blame for the deaths. I do not dwell on that; let me give the Government the benefit of the doubt that no such thoughts would cross their mind. But nonetheless, I still maintain that we need a specific regulation within what will be an Act of Parliament for many years to come in order to ensure that these matters are dealt with properly.

In this, I am not alone. Outside the House, the Royal British Legion is deeply concerned and certainly wishes me to put forward amendments to this effect. What is more, the War Widows' Association, which perhaps has more of an interest in this than anyone, is equally concerned that there should be something in the Bill. I declare an interest inasmuch as I am the president of the association.

I hope that I might get a little more from the Government than I did on the previous occasion, perhaps not a whole olive branch, as mentioned by the noble and learned Baroness in an earlier debate, but perhaps I may have a few leaves. I beg to move.

Lord Ramsbotham (Crossbench)

My Lords, I wish to express my firm support for the noble Baroness, Lady Fookes, in what she has said. Recently, a number of inquests have been held in which the coroner has been critical and got into a controversy over military procedures, including the role and responsibilities of commanding officers. Unless coroners have some experience of conditions on the battlefield, I do not believe it makes sense for them to enter into such debates because they confuse the issue and probably make the situation worse for the families who are trying to find out what happened. Therefore I accept absolutely that a coroner who is to undertake a military inquest, particularly one that involves a possible battlefield situation, should be educated to understand precisely what the role and responsibilities of commanding officers and others on the battlefield are so that the judgment is made as impartially as possible.

Baroness Butler-Sloss (Crossbench)

My Lords, I, too, support this amendment. I have personal experience of coroner training, having undergone some of it, and it is extremely good. However, this is such a specialised area that it would be entirely inappropriate to take up the time of all the coroners of England and Wales on training in how to deal with military inquests. What is necessary is to have a small cadre, perhaps only two or three, of coroners well trained in the duties required in this highly specialised and particularly sad area. But if no one is in charge, it is just the sort of thing that can slip through the net. I strongly support the amendment.

Lord Henley (Conservative)

My Lords, I also offer my support to my noble friend. As always, she has made a strong case for the idea that there should be a deputy chief coroner with particular responsibility for the oversight of military inquests and for the specialist training of all coroners who undertake military inquests. She certainly has our support for this.

It has been noted that a great deal of expertise in dealing with military inquests has been built up in certain coronial areas, sadly because the coroners of Wiltshire and Oxfordshire have had to deal with so many such inquests just because of where they are in relation to our airbases. The expertise that has been developed is formidable, but it is obviously somewhat ad hoc depending on which airbase in this country the deceased is returned to. I therefore find very attractive the suggestion of my noble friend that there should be some formalisation of that expertise so that a designated person has responsibility for co-ordinating training across all coronial areas and can oversee military expertise.

I do not doubt that the Minister appreciates the sensitivity and, sadly, the topical importance of this issue. The amendment is important and deserves support and I hope that the Minister will offer a sympathetic response to my noble friend—and certainly more than a few leaves from the olive branch. If he cannot offer even that, I hope he will offer at least a chance of further talks between now and Third Reading to see whether we can meet the suggestions of my noble friend.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, the deaths and injuries which occur on military service are outwith the experience of almost everyone who has not served on active service. When we were dealing with the Pensions Appeal Tribunal earlier this year, thanks to the persistence and tenacity of the noble Lord, Lord Morris of Manchester, we managed to secure a government concession that the Pensions Appeal Tribunal would hold a special place within the tribunal system because of the expertise required. If such a special place is granted where we are dealing with injuries, there has to be special provision for inquests involving military personnel.

I speak from some experience of courts martial and of having learnt, in the particular circumstances of military service, the significance of the chain of command, to which the noble Lord, Lord Ramsbotham, referred, and the significance of the provision of suitable facilities and resources to our armed services. Deaths that occur may—not always—involve a consideration of those factors. The provision that the noble Baroness, Lady Fookes, has advanced is exactly right for military inquests. We support her wholeheartedly.

Lord Tunnicliffe (Labour)

My Lords, I understand and support the desire of the noble Baroness, Lady Fookes, to ensure that there is adequate expertise to carry out military inquests in the reformed coroner system. I have listened to her arguments carefully today, as did my noble friend Lord Bach in Committee and, prior to that, at Second Reading. Amendment 44 airs this important issue again by proposing once more to make a deputy chief coroner responsible for overseeing military inquests and for providing specialist training to coroners who undertake them. However, we remain convinced that no specialist military coroner is necessary. I can reassure the noble Baroness and service families that the Bill will ensure that every military inquest can be carried out with the expertise it requires and deserves. It may be helpful if I confirm how this will happen. Before I do so, however, it is important to stress that we are talking about an entirely new coroner system, with training for coroners and a Chief Coroner who will require and ensure that standards are available to meet the needs of each inquest.

First, Clause 33 will ensure that, for the first time, all coroners are trained and receive refresher training throughout their careers in the specialist skills they will need for service investigations and other types of specialist investigations. The Chief Coroner himself or herself will be responsible for this training and not just his or her deputy.

Secondly, in addition to training, the Chief Coroner will issue guidance and set standards that coroners must meet for every type of death. The draft charter for the bereaved states that this will include standards in relation to deaths on active service. Although the charter is still a draft and will remain so until after the Chief Coroner is in post, I have no reason to believe that this provision will change. I understand that the Oxfordshire deputy assistant coroner has compiled extremely useful guidance on military inquests. I would not be surprised if future guidance drew on it.

Thirdly, all new coroners will be expected to operate to consistently high standards across the country. Many of the inquests that they conduct already raise equally complex issues in other settings.

Fourthly, the Chief Coroner would be able under Clause 3 to direct that a particularly complex investigation be conducted by a coroner whom he or she knows has had previous successful experience in such a case or, under Schedule 9, to nominate a judge, former judge or former coroner with the skills and experience that are needed.

Fifthly, I anticipate that, in practice, it is likely that many investigations into service deaths will still take place in the Oxfordshire or Wiltshire and Swindon jurisdictions. The current policy is, and will remain under the Bill, that those coroners will retain jurisdiction for those cases where there has been more than one death in the same incident. I should stress that in all cases where an investigation may be transferred from one coroner to another the families' views will be taken into account. We have been listening to service families. For instance, during the summer Recess, the Defence Minister Bill Rammell MP and officials attended the Royal British Legion and War Widows Association Armed Forces family event. Among the 30 bereaved families present was overwhelming support for inquests to be held locally to the family wherever possible—although it was acknowledged that other families' views may differ.

I remain confident that the Bill provides for all coroners to be skilled to tackle all investigations which come before them. There will be the responsibility for the oversight of, and training for, service personnel inquests that the noble Baroness seeks. As I have said, this will be the role of the Chief Coroner. My noble friend Lord Bach and I would be very happy to meet the noble Baroness between now and Third Reading. I would hope to be able at such a meeting to go through the detail and persuade her that the retention of skill and expertise and the training of coroners are assured through the responsibilities of the Chief Coroner. I hope that in the light of my explanation the noble Baroness will agree to withdraw her amendment.

Baroness Fookes (Conservative)

My Lords, I am deeply grateful to have received support in this short debate from such notable Members of the House of Lords. I listened carefully to the Minister. While I am grateful, I am still not entirely satisfied. For that reason, I should like to test the opinion of the House.

Lord Alderdice (Liberal Democrat)

My Lords, Amendment 54 is in my name and that of my noble friend Lord Thomas of Gresford. Clause 42 describes interested persons who may be appointed by the coroner. The problem is that there are circumstances in which there is no interested person who is willing to represent the interests of the deceased person, but there may be persons or organisations that are prepared to address this requirement. The Minister may well say that Clause 42(2)(m), which refers to,

"any other person who the senior coroner thinks has a sufficient interest",

covers the question that we have identified in this amendment, which says that,

"a coroner may recognise as an interested person an organisation or person who would be otherwise recognised as an interested party for the purposes of judicial review proceedings".

It may indeed be covered. It is not that we would press that this matter should be clarified entirely in the Bill, but at this stage I do not think that the Government have given any undertaking that the matter would be clarified in regulations or that it would be identified to coroners that they could exercise their discretion in this way. We are moving this amendment to give the Government an opportunity to clarify whether it would be made clear to coroners in regulations that they had the discretion to appoint someone who was not, in the first instance, an interested party but who, as an individual or organisation, could properly be regarded as such for the purposes of this clause. I beg to move.

Lord Tunnicliffe (Labour)

My Lords, Clause 42(2) sets out a comprehensive list of persons who may be designated as interested for the purpose of an investigation into a death. In the absence of an interested person willing to represent the interests of the deceased, the amendment would allow coroners to recognise an additional category as interested for this purpose. This category would be organisations or persons who are considered interested for the purpose of judicial review. It is very kind of the noble Lord to have made my speech for me, as I do not believe that this alteration is necessary. Clause 42(2)(m) gives the coroner discretion to include within a particular case any person with a sufficient interest. This could include a party interested for purposes of judicial review. It could also include a member of the person's extended family, such as an uncle or niece, or even a friend of the deceased.

If a coroner decides that a person has a sufficient interest and they do not fall within one of the other categories, they may appeal that decision to the Chief Coroner under Clause 35(5). I believe that this will sufficiently protect those persons targeted by this amendment. It is probable that we will be able to clarify this in regulation, but I put a slight caveat on that and will write to the noble Lord, Lord Alderdice, in terms before Third Reading saying whether we will be able to do so. If we are unable to do so, he will of course be able to retable the amendment. I invite the noble Lord to consider withdrawing the amendment.

Lord Alderdice (Liberal Democrat)

My Lords, I am grateful to the noble Lord for what he has said. Our concern is, first, to put the matter beyond peradventure, as it is not wholly clear in the Bill, and, secondly, to remind coroners that they have this option. As he said, from time to time they will undoubtedly glance down the substantial list of those who they may appoint, but it may not be entirely obvious to them—it is not to us—that other parties may be appointed in the way that is described. However, if the issue were included in regulation, that would satisfy the matter entirely. As I say, I am grateful to the noble Lord for his response. I hope that he will respond positively by letter. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

Clause 43 : Interpretation: general

Amendment 54A not moved.

Amendment 55

Moved by Lord Bach

55: Clause 43, page 25, line 23, at end insert "(read without regard to any order under section 380 of that Act) and also includes an offence under—

(a) Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or paragraph 4(6) of Schedule 5A to that Act,

(b) Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or paragraph 4(6) of Schedule 5A to that Act, or

(c) Part 1 or section 47K of the Naval Discipline Act 1957 (c. 53) or paragraph 4(6) of Schedule 4A to that Act"

Amendment 55 agreed.

Amendment 56

Moved by Lord Lloyd of Berwick

56: Before Clause 46, insert the following new Clause—

"Murder: extenuating circumstances

(1) In a trial for murder the trial judge may in the course of his summing up direct the jury that if they are satisfied that the defendant is guilty of murder, but are of the opinion that there were extenuating circumstances, they may on returning their verdict add a rider to that effect.

(2) The judge may not give such a direction unless there is evidence on which a reasonable jury might so find.

(3) Where the jury has so found, the judge shall not be obliged to pass a sentence of life imprisonment but may pass such other sentence as he considers appropriate having regard to any extenuating circumstances found by the jury.

(4) If the judge passes a sentence other than a sentence of life imprisonment, he shall be obliged to state his reasons.

(5) If it appears to the Attorney General that the sentence so passed is unduly lenient he may refer it to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing)."

Lord Lloyd of Berwick (Crossbench)

My Lords, there was a remarkable debate in Committee on this amendment. All but one of the 18 noble Lords who spoke on that occasion supported the amendment, some in glowing terms. The exceptions were the right reverend Prelate the Bishop of Winchester, who had certain reservations, and the noble and learned Baroness the Attorney-General, who replied to the debate. At the end of the debate I undertook to bring the amendment back on Report, which I now do.

As the House well knows, the circumstances in which the crime of murder can be committed are almost infinitely various. At one end of the scale, it is the most hideous of all crimes; at the other, it is among the most venial. The trouble is that the judge is obliged by law to pass the same sentence in every case—namely, imprisonment for life. However, we all know that in practice imprisonment for life does not mean exactly what it says. Very few convicted murderers do, in fact, spend the rest of their life in prison. After a minimum period in prison determined by the judge, depending on the seriousness of the case, whether that be 10, 15 or 20 years, they come before the Parole Board and in the great majority of cases are released on licence.

I make it absolutely clear at the outset that it is, to my mind, right that such cases should be sentenced to life imprisonment, so that the person could, if necessary, be recalled, but my amendment does not touch cases at that end of the scale. At the other end of the scale, there are cases of a very different kind. I have in mind the genuine mercy killer—the loving husband or wife who kills out of compassion—the soldier who kills in the course of duty as a result of an erroneous, split-second decision or the battered wife who kills after suffering years of abuse. Such persons very often have no defence to a charge of murder, so the judge will have no option but to sentence them to life imprisonment. This makes the law look ridiculous when everybody knows that in practice they will be released within a year or two at most. However, it is worse than that. It is, to my mind, wrong and unjust that such persons should be subject to recall, as they would be if a life sentence were passed, when there is obviously no prospect of their committing such a crime for a second time.

This amendment would provide a better solution to those cases. It would enable a the jury, when bringing in a verdict of murder, to find that there were, in its view, extenuating circumstances and it would be able to add a rider to that effect. The result would be that the judge was released from the obligation to impose a life sentence and could impose whatever determinate sentence—one year, two years or whatever—he regarded as being appropriate in the circumstances. There would then be no need for the defendant to appear before the Parole Board, which would be a complete waste of everyone's time.

It is difficult to know why such a humane—as I suggest it is—and harmless improvement in the law, suggested first not by me but by Professor Spencer QC of Cambridge University, should not be supported by the Conservatives and should be opposed by the Government. I shall hazard a guess later.

I shall deal first with the three arguments advanced in Committee by the noble and learned Baroness the Attorney-General. First, it was said that it would create a,

"halfway house between murder and manslaughter".—[Official Report, 30/6/09; col. 169.]

It was said that that would not be helpful. But why would it be unhelpful? It would provide an answer in the very cases where, at present, we have to squeeze the facts of deserving cases within the partial defence of diminished responsibility in order to do justice. That point was made strongly in Committee by the noble Lord, Lord Goodhart, the noble Baroness, Lady Murphy, and, on other occasions, by the noble Lord, Lord Walton of Detchant.

Instead of having what has become known as the benign conspiracy that now operates between prosecution and defence counsel, and experts on both sides, so as to secure a just result, we could deal with these deserving cases openly and honestly on the basis of a finding by the jury. Such a solution will become all the more urgent if the partial defence of diminished responsibility is to be narrowed in the way proposed by the Government and will depend on a recognised medical condition.

Lord Clinton-Davis (Labour)

I am having trouble with a small point, about which the noble and learned Lord knows. I am not happy about the words "a reasonable jury" in subsection (2) of the proposed new clause. In my view, all juries are deemed to be reasonable. Would it not make more sense if the word "reasonable" was omitted and, after the word "might", the word "reasonably" were inserted?

Lord Lloyd of Berwick (Crossbench)

I think that the noble Lord and I have the same point in mind. The test that I have put in the amendment is quite often applied, but, in reality, there is no difference between the two tests. I am obliged to the noble Lord. For the reasons that I have suggested, far from being unhelpful, this amendment would be extremely helpful.

Secondly, it was suggested that the amendment would work only if there was a definition of the words "extenuating circumstances". The noble and learned Baroness said that Parliament should decide,

"something of such importance to the public at large".—[Official Report, 30/6/09; col. 171.]

Again, I am sorry that I cannot agree with that. In every murder case, the members of the jury are the representatives of the public at large, just as much as Members of Parliament are, so why not leave the decision in these cases to the jury? Nor would the jury have any doubt as to what "extenuating circumstances" meant. If I were the judge in such a case, I should have no difficulty in guiding them. I would simply refer to the Concise Oxford Dictionary and say, "Members of the jury, extenuating circumstances are circumstances that lessen the seriousness of the offence or diminish the guilt". That would be perfectly satisfactory guidance for them. No doubt the Judicial Studies Board would improve the amendment, but that would be the basis of it—simple English words that the jury could apply without any difficulty, and certainly without the need for a definition. Indeed, it would be literally impossible for Parliament to attempt to define all the circumstances that the jury might regard as extenuating and it would destroy the whole point of the amendment.

The third argument seemed to me trifling. It was said that the amendment might add complexity, because what would happen if 12 members of the jury were in favour of convicting and only eight were in favour of finding extenuating circumstances? The answer is obvious: there would be no rider in such circumstances.

Those were the only arguments and they seemed—at any rate, to me—to be far from enough to explain why this amendment was being resisted by both the Government and the Official Opposition. What is the explanation? It is quite obvious, at any rate to those of us who sit on the Cross Benches. It is politics. Both sides fear that, if they support this amendment, they will be accused by the other of being soft on crime, so there is an impasse. Both sides fear the headlines in the Daily Mail and fear that this will lose them votes in the general election. I find that profoundly depressing, all the more so because my belief is that both sides are wrong.

There must, of course, be a sentence of imprisonment in these cases because we are dealing with murder. It must, of course, be left to the jury. However, if those two conditions are satisfied, I believe that the public would positively welcome this amendment. That was certainly the evidence emerging from the research carried out on behalf of the Law Commission in 2003, and again in 2005, by Professor Barry Mitchell. He found that the public are perfectly capable of distinguishing between different kinds of murder and that there is little, if any, support for the mandatory life sentence in the case of the genuine mercy killer. The Law Commission endorsed that view when it said, on page 155, that a life sentence in such cases is "neither necessary nor appropriate". I agree.

Is the life sentence really so sacrosanct now in cases of murder that we cannot make this limited exception? It is not even as though it is the first exception; we already have one in the case of the partial defence of provocation and another in the case of the partial defence of diminished responsibility. Why can we not add a third exception to do justice in the very deserving cases that I have in mind? It is depressing beyond belief to me—and, I suspect, to many others—that political considerations should stand in the way of a reform of the law that would be so beneficial. I beg to move.

Lord Clinton-Davis (Labour)

My Lords, I do not always agree with the noble and learned Lord who has just spoken but on this occasion I largely do. I gather that at a later stage he is prepared to accept the amendment that I mentioned in my intervention. It is not very important: he is right to say that not a lot divides us.

The noble and learned Lord spoke with great clarity and persuasion. I think that we have to adjust to the circumstances that prevail at the time, and I entirely agree with him that it is irrelevant how this might be received by people outside who have not listened to this important debate. I think that the law has to adjust to changed circumstances, and I certainly support all those mentioned by the noble and learned Lord. This is not a party-political issue; it is a commonsense issue, and he has argued the case for reform with skill. I hope that the Government will understand this issue in that light. It is not one that ought to divide us but we have to be prepared to understand that circumstances change cases, as he made out perfectly well.

Lord Goodhart (Liberal Democrat)

My Lords, there is a famous song in Gilbert and Sullivan's "The Mikado" about making the punishment fit the crime. That surely should be the target of all sentencing, although not quite in the way suggested by Gilbert and Sullivan. Making the punishment fit the crime is and should be the target of English sentencing in courts, but there is one exception to this and one only, which is the mandatory life sentence for murder.

Only murder requires a mandatory life sentence, and that seems to have become a sacred matter. It means that when the Government asked the Law Commission to consider reforms to the law of murder, they excluded any alteration in the mandatory life sentence. The result was a report by the commission which, I believe, has been regarded by many people as rather unsatisfactory. Yet, as the noble and learned Lord, Lord Lloyd of Berwick, said, murder covers an immensely wide spectrum—everything from sadistic serial murder to mercy killing. Why should we not recognise this and allow variable sentences for murder? The main reason seems to be the fear that the media will stir up public opinion by attacking any sentence short of life imprisonment as being soft. The answer to that is to adopt the proposal by Professor Spencer, as this amendment does.

The Spencer proposal, on which the amendment is based, provides three safeguards. First, the judge must tell the jury that it would be possible for a reasonable jury, or for a jury reasonably, to decide that there were extenuating circumstances which justified a lesser sentence. Secondly, the jury, or at least 10 of its 12 members, would have to decide that there were extenuating circumstances which justified a sentence short of life imprisonment. Thirdly, if the Attorney-General thought that the sentence was too lenient, she would be able to appeal against it. The involvement of the jury here is critical because, if a jury of ordinary people decides that there are extenuating circumstances, it will be far more difficult for the media or the public to attack the sentence in question.

It has been suggested that the expression "extenuating circumstances" needs more detailed definition. I do not agree with that. The facts of each case are likely to be immensely variable and it would be useless to try to put them into a rigid list. The only reasonable definition of extenuating circumstances that I can come to is circumstances that reasonable people would regard as justifying a sentence that was not a life sentence. That is simply a circular definition. No doubt over time a pattern would be built up, but it should be a flexible pattern developed through the courts, not tied to rigid rules set out in legislation.

The acceptance of this amendment would greatly simplify the law. The defence of diminished responsibility would be limited to the purposes for which it was originally created—that is, to apply to people who are driven to kill by an abnormal mental condition. It would not need to be extended beyond its real meaning, as happens now, to enable a court to impose a merciful sentence on a mercy killer. The partial defence of provocation, or its proposed replacement—loss of control—could be abolished altogether and the facts taken into account in deciding whether the circumstances were extenuating, and if so, what the sentence should be.

This amendment would make the law simpler and fairer. As far as I can see, it has no disadvantages and I invite your Lordships to support it.

Lord Clinton-Davis (Labour)

Does the noble Lord support my comment that the words in the amendment are fine except for, "a reasonable jury"? That is misconceived. The jury might come to a reasonable verdict.

Lord Goodhart (Liberal Democrat)

I mentioned both options in my speech. I do not think that there was much difference between them but I am happy to accept the noble Lord's suggestion.

Baroness Butler-Sloss (Crossbench)

My Lords, I put my name to this amendment and strongly support what has already been said both by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart. The phrase "life imprisonment" is sacrosanct, as the noble and learned Lord, Lord Lloyd, said, but of course, it is not true. Very few people serve life imprisonment; I think that fewer than 10 people are likely to be there throughout their lives.

So, we start with a contradiction: the sacrosanct life imprisonment and the reality which is entirely different. It is a sound and not substance. It would be very sad—it is sad in that it happens—if both the Government and the Official Opposition were so concerned to align their position with the popular press rather than look at the merits of a very good amendment. It would be a great triumph for common sense, as well as for the amendment of the noble and learned Lord, Lord Lloyd, if both the Government and the Official Opposition were to agree on this and let it through.

Lord Mayhew of Twysden (Conservative)

The mandatory life sentence for murder is an anachronism and it is not benign either. I support what has been said by all speakers so far in this short debate for the reason that is central to the case that they make—that every murder differs in important respects generally from another. The circumstances in which murders are committed are infinitely variable. That truth has had to be recognised by the various administrative devices that we have adopted over the years to deal with it. It would be far better for the trial jury, suitably directed—I shall come to that in a moment—to give its opinion, after it has heard all the witnesses and seen the evidence, on whether extenuating circumstances exist.

I find it difficult to understand the visceral opposition that exists in some quarters because in the same quarters there is a passionate and correct upholding of the jury system and the jury's right to determine guilt or innocence. It would be far better to extend that, so that a jury might say, "Very well—guilty of murder. But having heard the judge's direction as to whether there exists evidence that may be capable of being seen to be extenuating, we think that such evidence does exist and that there are extenuating circumstances".

This amendment will retain the life sentence as a norm, but it will mitigate its propensity to produce an incongruous result. It is important to bear in mind that the judge must direct the jury that in his view, if they are satisfied that the defendant is guilty of murder but are of the opinion that there were extenuating circumstances, they may return a verdict to that effect. However, he may not give such a direction unless there is evidence on which a jury might reasonably find. It is also important to preserve the discretion of the Attorney-General to refer the matter to the Court of Appeal if he or she believes that the sentence is unduly lenient. It will also be another ground for appeal to assert that the judge was wrong in directing the jury as he had and that there was evidence capable of such a finding.

For reasons which have been touched upon, a certain amount of courage will be needed if this is to be accepted—a certain amount of courage, but not much. It ought to be found.

Lord Woolf (Crossbench)

My Lords, I hesitate to add to the eloquence that has been advanced in favour of the amendment, but I would be departing from a tradition that has grown up in recent times, and certainly since the time of Lord Lane, of former Lord Chief Justices indicating that reforms of this kind are desperately needed in relation to the law of murder.

We have heard previous speakers identify the various precautions in existence, showing that ample safeguards are included in the proposed section. Therefore, if the clause becomes law, nothing untoward will happen. However, I want to add one more. It is clear from subsection (3) that the judge himself must consider it appropriate, having regard to the extenuating circumstances, not to impose a life sentence. He will therefore have in mind the fact that the law is so clear that in all ordinary circumstances the sentence must be one of life. It will only be in a situation in which, as the sentencing judge, he is satisfied that justice does not require a life sentence that he will impose another sentence.

Lord Pannick (Crossbench)

My Lords, I, too, support the amendment. The fear of being perceived to be soft on crime, the jurisprudential basis rightly identified by the noble and learned Lord, Lord Lloyd of Berwick, is nonsensical in this context. It has for some time been the case that the mandatory life sentence does not consist at all of a life sentence: it consists in all but a few cases of a penal element expressed at the trial in the form of a term of years communicated to the defendant, following which the defendant is considered for release by reference to whether it is safe to release him or her.

The only argument advanced by the noble and learned Baroness the Attorney-General in Committee in response to the points made was that the life sentence enables the defendant to be recalled to prison at any time during his or her life. If that is the aim of the life sentence, and the only aim, surely that objective can be achieved by confining the life sentence, as the amendment would, to cases where there are circumstances which justify a lifelong condition and the possibility of recall for the whole of the individual's life. There is no basis for those conditions where there are extenuating circumstances which make the prospect of repetition of the offence nonexistent.

I also remain concerned, as I explained in Committee, that under the current law, there are cases where the jury is simply unwilling to convict of murder, although that is the true verdict, because it is unwilling to subject the defendant to a mandatory life sentence, because that is manifestly unjustified in the circumstances of the case.

Lord Carlile of Berriew (Liberal Democrat)

I, too, support this very important amendment. I say to the Government that there cannot have been many debates in this Chamber where we have heard the views not only of a very distinguished retired Law Lord, the noble and learned Lord, Lord Lloyd, but of a retired Lord Chief Justice and of the noble and learned Lord, Lord Mayhew, who was both Attorney-General and Secretary of State for Northern Ireland for considerable periods; so we have a wealth of experience advising us in this debate. It is also to be noted that in the noble and learned Lord's amendment, the judge is not obliged to pass a sentence other than a life sentence. If the judge regards the defendant, despite the extenuating circumstances, as being a continuing danger, the judge may still pass a life sentence and therefore ensure that the whole panoply of the Parole Board is brought to bear on the case and the defendant may be subject to release only on licence in future.

Had we been able to conduct methodical research into the views of juries and the way in which juries function, I am absolutely sure, after well over 30 years of dealing with juries, that we would have found juries agreeing with what is proposed. I support completely the last point made by the noble Lord, Lord Pannick: there is a mass of anecdotal, albeit anecdotal, evidence that juries are not convicting people of murder in cases where there are extenuating circumstances, for two simple reasons. First, they are not willing to hear the words, "You will be imprisoned for life", passed on the defendant in the case. Secondly, they know that the parole system is unpredictable and, currently, overwhelmed and therefore cannot be guaranteed to provide fairness.

Baroness Warnock (Crossbench)

My Lords, I rise briefly simply so that there should be some voice other than the voice of the law in favour of this extremely important and subtle amendment. The law must be seen to be just. I have just been reading the life of Lord Denning. His perpetual insistence on the aim of a trial, the aim of the court and the aim of the judge being to see that justice is done to the defendant seems to me to be of enormous importance.

It cannot be seen by ordinary people who are not lawyers to be just if crimes such as mercy killings or deeply regretted killings undertaken in the heat of battle should be treated in the same way as completely different, malicious, evil and probably self-seeking killings at the other end of the spectrum. Even though the concept of a life sentence is absurd because it is not normally a sentence for life, the ordinary public, of whom the jury is composed, do not like this farce and the manifest injustice of treating different cases as though they were the same.

Lord Condon (Crossbench)

My Lords, as a former police commissioner, I find myself completely at ease with and supportive of this amendment. I believe that the majority of the public would also be at ease with it. I do not think it is in any way a softening or weakening of the approach to murder. It is an elegant solution to a problem that has been unresolved for too long. I support the amendment.

Lord Ramsbotham (Crossbench)

My Lords, I also add non-legal support to my noble and learned friend Lord Lloyd. I was enormously influenced in my decision by an excellent report by a very distinguished panel led by the Dean of Southwark who came to exactly the same conclusions for exactly the same reasons.

Lord Elystan-Morgan (Crossbench)

My Lords, nothing that I say should affect the unanimity of the verdict that Members of this House have expressed on this matter until now. I spoke at some length in Committee and nothing that I said on that occasion will be improved by repetition. As a circuit judge, I never had occasion to try a murder case, but 40 years ago, I was a Minister in the Home Office dealing with criminal matters from day to day. James Callaghan, the Home Secretary of the day, told me quite robustly that this was lawyer's work and that although the decision in relation to life cases would ultimately be his, he would expect to have my firm views with regard to each case. I found myself almost weekly being involved in situations where the law ordained that there should be a rigid sentence without exception but where the range of difference between one case and another, as every speaker has endorsed, was so immense that one could not conceive of the justice of dealing with them in a rigid and uniform way. It therefore seems to me that the amendment is utterly justified and meritorious. Not only can it simplify and clarify the law, because it can take over from considerations in relation to provocation, but it can make it much more transparent.

From time to time over the centuries there has been what might be described as pious perjury on the part of juries, and thank goodness for that. They have somehow bent the facts in order to prevent dreadful injustices. I have no doubt that even nowadays juries exercise some measure of pious perjury in arriving at verdicts of manslaughter rather than murder. What is now less than honest can become totally honest and transparent. As more than one speaker has stressed, society at large, right-thinking, intelligent, fair-minded, balanced society will accept this. If we wait for the day when the Daily Mail, the Daily Mirror and the Sun look in a balanced, reserved and cool way, we will have to wait for ever.

I noticed the Minister recoil almost in horror when it was suggested that he was politically motivated here. I have immense regard and respect for him. All I say is that it would be unfortunate if he was seen to stand with the tabloids against remedying an obvious injustice as soon as possible.

Baroness Murphy (Crossbench)

My Lords, I repeat what I said in Committee in strong support for the amendment. I am particularly concerned—other people have not mentioned this—about people with peculiar mental states who will not now fit into the new criteria for diminished responsibility because they will not fit conveniently into the diagnostic and statistical manual and the international classification of diseases. If we are to have individualised justice, jurors and judges need to address a wide range of circumstantial, psychological and contextual matters, as other people here have said today, and it concerns me that we might miss out some of the people who would be covered by the old provisions for diminished responsibility. The amendment would be an elegant and simple way of meeting some of our concerns, and defendants would not have to be artificially squeezed into inappropriately fudged categories. I give my wholehearted psychiatric support to the amendment.

Lord Alderdice (Liberal Democrat)

My Lords, I do not wish to repeat what my noble professional colleague said, so I will address a different, and straightforwardly political, difficulty that leads me strongly to support this amendment.

The population as a whole does not necessarily look in the same way at the detail of how a court has come to its conclusion. I cite the case of Private Clegg. When he was convicted, there was a clear view in Northern Ireland of what that meant; he was guilty of murder, and a life sentence was required. When subsequently it was decided that he should be released, it was not seen as appropriate mercy, given the circumstances; it was seen as the British establishment backing its own man in the security forces without due consideration of the sensitivities of nationalist people in Northern Ireland. That was not what it was and not how it should have been seen, but it was to some extent a consequence of the straitjacket in which the judge and the court were placed. Had the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, been in place at the time and had that flexibility been available, it would have made it possible for the judge and the court to nuance the decision in such a way that a political problem, which proved to be of serious magnitude in Northern Ireland, would at least have been mollified to some extent.

We sometimes speak of political motivations as though they were always a bad thing, particularly in relation to issues of this kind, but here there are very good reasons for understanding that adverse and inappropriate political consequences can flow from such situations without the flexibility in the noble and learned Lord's amendment. This is an opportunity for us to rectify this, if not for the past then at least for the future.

Lord Low of Dalston (Crossbench)

My Lords, I, too, strongly support the amendment. I must apologise to the House and to my noble and learned friend Lord Lloyd for missing his opening remarks, but I think that I have heard enough of the debate to feel confident that I will not simply repeat what other people have said, no doubt with greater eloquence.

The crime of murder, as we have heard, encompasses an immensely broad spectrum of circumstances that runs all the way from terrorist or gangland killings at one end of the scale to mercy killings at the other. The mandatory life sentence is a supremely blunt instrument for responding to the relevant distinctions in a properly discriminating way. Our law is saved from the charge of barbarism only by what is referred to as the benign conspiracy. Fictions of this sort are undesirable, so it is clearly desirable that the law should be amended to recognise openly and transparently the distinctions to which all noble Lords have referred. However, it is imperative, and not just desirable, that something is done now that the Government propose to narrow the scope of the defence of diminished responsibility, which provides the basis for the benign conspiracy, so that it will no longer be available.

The Government, with this Bill, are implementing some of the recommendations of the Law Commission report of 2004, but they have not implemented all of them. The report called on the Government to undertake a public consultation on whether, and if so to what extent, the law should recognise either an offence of mercy killing or a partial defence of mercy killing, but the Government have not implemented that recommendation and have not undertaken the public consultation that was called for.

In the absence of such a consultation and with the narrowing of the defence of diminished responsibility, the amendment, or something like it, would provide the only means of rescuing our law from the charge of barbarism that it will undoubtedly attract if the Bill goes forward in the form which the Government propose.

Lord Stewartby (Conservative)

My Lords, this is not a subject to which I gave much thought before this afternoon. I was not clear what my view ought to be about it and I thought that I would attend your Lordships' House to listen to the debate. It happens that this is one of the most remarkable occasions that I have ever experienced in this House in almost 20 years. The noble and learned Lord, Lord Lloyd, has made a powerful case, and it has been backed-up by an amazing range of different experience and recollections of different circumstances.

If there is a political angle to this, it is pretty flimsy because the role of the jury that is proposed here would guarantee popular consent. Those on the Front Benches may produce ideas that have not occurred to me but, on the basis of the debate that I have heard, I am very much minded to support the amendment.

Lord Newton of Braintree (Conservative)

My Lords, my brief intervention from these Benches will be on the same lines as those of my noble friend Lord Stewartby and, indeed, the noble Lord, Lord Low. I ought to confess that, like them, I did not hear every word of the opening remarks of the noble and learned Lord, Lord Lloyd of Berwick, but I have listened to the rest of the debate and think that the weight of support for the amendment is really very impressive and almost convincing in itself.

The only other point that I want to make is that no doubt those who do not favour this amendment will argue, as I think the noble Lord, Lord Pannick, did, that this is somehow going soft on something. I merely observe that as everyone knows that a mandatory life sentence does not mean what it says, some cynicism is generated by the defence of a proposition that does not mean what it says. Taking a more realistic approach to the law and the situation is both sensible and right.

Lord Neill of Bladen (Crossbench)

My Lords, I draw attention to the practicalities of the amendment and to the consequences of the trial if we go down this route. I fully support the amendment—it is completely correct—but, as the noble and learned Lord, Lord Mayhew, said, cases will come forward with an infinite variety of circumstances. I find it possible to conceive of a case where the defence ran with diminished responsibility, giving three sets of circumstances that combined to produce extenuating circumstances sufficient to comply. The jury could be convinced by two of those circumstances but not at all by the third. That is implicitly provided for in subsection (3) of the proposed new clause, although whether it has that aim, I know not. It states:

"Where the jury has so found, the judge shall not be obliged to pass a sentence of life imprisonment but may pass such other sentence as he considers appropriate having regard to any extenuating circumstances found by the jury".

The jury could therefore make a finding to the effect that, "We can find on A and B but we do not find a third element".

That leads me to another train of thought: the role of the prosecuting counsel in this part of the case. There are people here with huge experience—I did do criminal law in my younger days but I have not done it for ages—who can explain the role of the prosecuting counsel. As the defence marshals the evidence which, on its case, will lead to the judge making a direction in favour of a finding of extenuating circumstances, I assume—although others with more experience may contradict me—that the prosecuting counsel will be able to test that evidence as it comes forward. That would necessarily lead to some prolongation of the trial, but one would have to accept that if this is the route down which we are going to go, or we will be going, I hope. Presumably, as the prosecuting counsel is not concerned with the actual sentence, he would not be able to make submissions as to whether the totality of the extenuating circumstances as found by the jury amounted to something sufficient to give a lead to the judge giving a proper direction in accordance with subsection (1).

I will just say that there could be foreseeable difficulties—

Lord Thomas of Gresford (Liberal Democrat)

Does the noble Lord accept that the prosecuting counsel could certainly challenge the facts from which the defence was seeking to draw extenuating circumstances, although he might not be obliged or able to address the jury on whether they were extenuating circumstances or not. However, he could certainly challenge all the facts.

Lord Neill of Bladen (Crossbench)

That is what I said. The prosecuting counsel would have a role as a challenger of fact.

Lord Morris of Aberavon (Labour)

My Lords, I, too, apologise for missing the earlier part of the debate, but in the summer I read the letter of the noble and learned Lord, Lord Lloyd, where he advanced the most convincing arguments for the amendment that he has now put forward and on which I wrote to him in support. In a lifetime of practice involving many murders, the usual issue is whether it was murder or manslaughter. I have long believed that there should be one law of homicide, as Lord Lane, a former Lord Chief Justice, adumbrated more than 20 years ago. Therefore, I fully support the amendment tabled by the noble and learned Lord, Lord Lloyd, which seeks to deal with the too blunt instrument that we now have.

Bishop of Ripon and Leeds (Bishop)

My Lords, unlike most of the speakers in the debate, I have never studied criminal law, but I have considerable experience of seeking justice and what that means. This amendment is based around the concept of justice and I support it for that reason. Our criminal law is based on justice, but justice is a far wider concept than simply that of our criminal law. If we are to put that concept and idea of justice into real effect in our society and therefore within our law, it will need at least to include both verdict and sentence. In this debate and in the discussion that preceded it, the danger is that we shall have verdicts that are just but sentences that are not. That cannot lead to a sense of justice in the community.

A sentence of life imprisonment is rightly an extremely serious sentence. The problem with the present law is that it can bring that sentence into disrepute. We have heard terms such as "fiction" and "conspiracy" used about the present law during this debate. That cannot be right. We need to have confidence in both judge and jury; I was powerfully influenced by what the noble and learned Lord, Lord Mayhew, said on that matter. If we are to have that confidence, I believe that this amendment or something like it needs to be put on to our statute book in the cause of justice.

Lord Hunt of Wirral (Conservative)

My Lords, the noble and learned Lord, Lord Lloyd, has made his case in characteristically eloquent terms. I came into this debate ready to listen. I have listened carefully because, like the right reverend Prelate, we all want to see justice. Whereas the noble Lord, Lord Goodhart, said that if we pass this amendment it would simplify the law, I must say that, as a result of the speeches that we have heard, I am well aware that it would hardly do that. However, many noble Lords feel strongly that this change should be made.

The idea that the jury can add a rider to its verdict is an interesting one, which I recognise has considerable support around the House. Indeed, I agree with my noble friends Lord Stewartby and Lord Newton that the tenor of the debate has been in that direction and I greatly respect my noble and learned friend Lord Mayhew of Twysden in what he said. But the addition to English law of what is in effect an additional verdict is, we have to recognise, an innovation.

Lord Thomas of Gresford (Liberal Democrat)

Does the noble Lord recollect that, when murder was a capital offence, a jury was able to give a recommendation for mercy, which was usually acted on by the Home Secretary of the day?

Lord Hunt of Wirral (Conservative)

Yes, I do recall that.

Baroness Murphy (Crossbench)

I am sorry to interrupt the noble Lord. I think that he will find that it is the jury that finds for diminished responsibility as well. The judge recommends, but it is for the jury to find. It is a different verdict.

Lord Goodhart (Liberal Democrat)

I am sorry also to interrupt the noble Lord to make a brief point. Does he accept that, in the case of the defence of provocation, which is plainly an extenuating circumstance, it is the jury that now takes the decision as to whether there has been sufficient justification? The jury does so, of course, in the light of advice given by the judge, but it is definitely the decision of the jury. Why should the power of the jury in relation to that particular extenuating circumstance not extend to other extenuating circumstances as well?

Lord Hunt of Wirral (Conservative)

Yes, I accept what the noble Lord says and, so far as the noble Baroness is concerned, we are about to come to a series of extended debates on developmental immaturity, diminished responsibility, gross provocation, sexual infidelity, proximity of qualifying triggers et cetera. These are issues that we are going to discuss in much more detail. All I will do is repeat that what is in effect an additional verdict is an innovation; it would have serious and far-reaching ramifications, about which the noble and learned Lord said he was well aware.

The first and most obvious is that the noble and learned Lord's amendment would all but do away with the concept of the mandatory life sentence. Many noble Lords have spoken with eloquence about the need in effect to do that or to recognise that it has virtually disappeared as it is. That, I suppose, is another issue to which we will return. But if the jury was to return a verdict of guilty but with what are called extenuating circumstances, under subsection (3) of the new clause proposed in the amendment the judge would not be obliged to pass a long sentence, notwithstanding subsection (4), which would demand that a judge in such circumstances would have to state his reasons for choosing another sentence. However, we would still be confronted with a situation where a verdict of guilty to murder would not necessarily attract a life sentence. That, therefore, would be the end of the mandatory life sentence.

I look forward to hearing what the Minister has to say, but if Parliament was minded to take a step such as this, it should do so only after wide consultation and a full debate on the merits of sentencing provision. If we were to accept the noble and learned Lord's amendment, we would be sidestepping the issue of the mandatory life sentence. I should say to the noble and learned Lord—although he seemed to be well aware of what I was about to say before I stood to make this contribution—that we on these Benches would not wish to do so because we are in favour of keeping the mandatory life sentence and the amendment would undermine that.

I am puzzled, too, as is the noble Lord, Lord Clinton-Davis, by subsection (2) of the proposed new clause, which would allow the judge to withhold giving a direction to the jury that it may return a verdict with a rider of extenuating circumstances if he or she feels that a reasonable jury would not do so on the evidence. I ask: what is a reasonable jury? The noble and learned Lord said that it is just a case of looking it up in the Oxford English Dictionary. I have on many occasions looked in that dictionary to find a variety of definitions, but I am not quite sure what this would prove or disprove. Surely if we trust in the way our jury system works, any given jury has to be treated as reasonable. So what grounds would the judge give for withholding his direction? Would it depend on the nature of the evidence or on the nature of the jury? The noble Lord was right to express this, although he gave us to understand that he had already been satisfied by the addition of an amendment.

Lord Clinton-Davis (Labour)

Do I understand that the noble Lord is arguing that what I propose is fine? Would he support the proposal put forward by the noble and learned Lord, Lord Lloyd of Berwick?

Lord Hunt of Wirral (Conservative)

All I am saying at this stage is that the noble Lord is right to point out the difficulty of understanding what "reasonable" means in these circumstances.

How would the conflict that the noble Lord and I have identified be resolved? Would we see inconsistencies in verdicts emerge in different parts of the country unless a standardised view of what is a reasonable jury is formed? The mandatory life sentence at least has the virtue of being consistent.

On the issue of consultation, I know that the noble and learned Lord, Lord Lloyd, does not pursue this matter lightly; I know and admire the formidable amount of time, thought and energy that he has devoted to developing his arguments, as we saw with the contributions of many noble Lords. But such a move as his amendment would require in the operation of the system of jury verdicts and in changes to the law on sentencing, I hope noble Lords agree, deserves fuller and more public debate. We would gladly participate in any such public discourse, but we firmly believe that we would need to involve all the key organisations—the Bar Council, the Law Society and the Law Commission—far in advance. I say to the noble and learned Lord and to all noble Lords who have participated that it is very important that we have this debate. Noble Lords have conducted it to their usual commendable high standards and I apologise if I do not seek to respond to every point raised but, for the reasons that I have outlined, I cannot at this stage and on this occasion commit the Opposition to supporting the noble and learned Lord.

Lord Pannick (Crossbench)

Does the noble Lord accept that there has been consultation on this issue for the past 20 years and that the views of all professional organisations have been absolutely clear? Can he explain why he tells the House that he is in favour of the mandatory life sentence? What is the reason for retaining it?

Lord Hunt of Wirral (Conservative)

I am talking about public consultation on this proposal and I do not believe that there has been that consultation. All the arguments in favour of maintaining the mandatory life sentence are still there and I support them. The nature of the consultation to which the noble Lord referred does not include consultation on this proposal, which I think is sorely needed.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, my name is attached to the amendment and I was delighted to hear the noble Lord, Lord Hunt, call for a wider and fuller debate, with key organisations consulted, on the reform of the law of homicide, which is what should happen. In this instance, the Law Commission has been confined in its consideration by the presupposition that the mandatory sentence would remain and has produced a structure from which the Government have chosen one or two things completely out of context and put them into the Bill. The amendment put forward by the noble and learned Lord, Lord Lloyd, undoubtedly would simplify the position completely.

Noble Lords seemed to forget that the partial defences do not arise unless the jury is satisfied that murder has been committed. The first thing of which a jury is required to be satisfied is that the defendant killed the victim, either with the intent to kill or with the intent to cause him serious harm. It is only at that point that the judge will ask the jury to consider whether a partial defence arises. If it is the defence of provocation, the judge will not ask the jury to consider it unless he considers that a reasonable jury, properly directed, could return that verdict. The direction that the judge will give is encapsulated in Clause 48(6), where the Government trample on provocation. I shall come back to that. Subsection (6) states:

"For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply".

That is the word that the noble Lord, Lord Clinton-Davis, would prefer. The law at the moment takes into account what a reasonable jury might or might not conclude before the judge will leave to it the possibility of returning a verdict of manslaughter rather than murder, either on the grounds or provocation or diminished responsibility. The essential thing is that murder must be proved first. It is then called by a different term—manslaughter—if the prosecution fails to disprove one or other of the partial defences that the judge has concluded the jury might reasonably consider on the evidence adduced in the case.

The amendment proposed by the noble and learned Lord, Lord Lloyd, envisages that a jury should still convict of murder if the ingredients of murder are satisfied—that a person has killed with intent to kill or to cause serious or grievous bodily harm. So the defendant would still be convicted of murder as opposed to manslaughter. However, in a case where the judge thinks that it is reasonable so to conclude on the evidence adduced, the jury could say that there are extenuating circumstances. This would open it up to the judge to pass a sentence other than the mandatory life sentence, which is, of course, the stumbling block to all proper reform in this area. I do not want to repeat everything that has been said by noble Lords; I just wish to endorse it from long experience.

If the argument advanced by the Attorney-General in Committee is the only one on which the Government found their resistance to the amendment—they question what such circumstances amount to—one has only to consider what sort of concepts a jury has to grapple with not only in the current law of provocation but in the law as redrafted by the Government. Under Clause 48, the jury has to grapple first with whether the defendant's acts or omissions in doing or being a party to the killing resulted from the defendant's loss of self-control, whether that self-control had a qualifying trigger—I shall come back to that—and then whether,

"a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D".

A jury has therefore to go through all this process of putting itself in the position of that defendant and then, acting as the embodiment of the reasonable man, to consider, "Well, would I have done that if I had been in the position that the defendant was in, bearing in mind his age and sex?".

It is a very difficult concept, but the jury's task does not stop there, because it has to look at the "qualifying trigger", which is, for example, that the,

"loss of self-control was attributable to a thing or things done or said (or both) which ... constituted circumstances of an extremely grave character, and ... caused D to have a justifiable sense of being seriously wronged".

So the jury then has to consider a "qualifying trigger", "extremely grave character", and,

"justifiable sense of being seriously wronged".

Then, by way of a final kick before that clause is left, it has to exclude anything that constitutes sexual infidelity—we shall come back to these arguments at a later stage.

At the moment, the law is intensely complicated and requires the jury to conduct all sorts of difficult intellectual exercises, but, as proposed by the Government, it gets even worse. This is all to reduce the conduct of the defendant from murder, so that he is no longer called a murderer but is called somebody guilty of manslaughter, and to enable the judge to pass a sentence that he thinks is appropriate in the case. Under the amendment tabled by the noble and learned Lord, Lord Lloyd, the judge would be obliged to take into account what the jury, as the representatives of the people, thinks are extenuating circumstances. The judge does not have to agree under the amendment, but he would no doubt take very much to heart what verdict was proposed.

The law of murder is in a mess; it requires complete restructuring. It requires getting away from the mandatory life sentence—a political football that has been knocked around for so long—and it demands a rational approach. The nearest within the context of the law at the moment that you can get to a rational approach is for your Lordships to accept the amendment that the noble and learned Lord, Lord Lloyd, has moved.

Lord Bach (Labour)

My Lords, I thank the noble and learned Lord, Lord Lloyd of Berwick, for moving the amendment. I also thank all those who have spoken in what, as the noble Lord, Lord Hunt, said, has been a good debate on a very important topic. Widespread support for the amendment has been expressed around the House and one can understand why it appears attractive. However, this is not an amendment that the Government can accept. Perhaps I may explain in a few words, because this has been a long debate, why that is so.

This debate is about the effective abolition of the mandatory sentence. When the noble and learned Lord, Lord Lloyd of Berwick, moved an equivalent amendment in Committee, he said:

"Perhaps I may say a brief word about the mandatory sentence. I remain firmly of the view that it ought to be abolished because it is the one single factor that makes coherent reform of the law so difficult. But I accept that, as things are for the moment, its abolition is not a practical possibility, if only because it is opposed by both of the main political parties. They oppose it for reasons that I regard as specious".—[Official Report, 30/6/09; col. 151.]

He has moved the same amendment with great eloquence again today. However, if it is passed, it will in practical terms abolish the mandatory sentence. There are many commentators, both inside and outside this House, who would like the mandatory sentence abolished—I appreciate that and accept it at once. There are also others who do not think that we can take that step quite so easily as doing it through an amendment to this Bill. I agree with the noble Lord, Lord Hunt of Wirral, that there needs to be a full debate about whether the mandatory sentence should stay before we effectively abolish it, because that is what we would do if we voted for the amendment tonight.

The mandatory sentence is not just or at all to do with trying to keep in with the popular press—my goodness, if my party was trying to keep in with the popular press, it is not making much of a job of it at the moment. It is much more to do with reflecting the seriousness of killing with an intention at least to cause the victim serious harm and, in most cases, death. Whether we like it or not, the public rightly regard murder as a particularly abhorrent crime, and the mandatory life sentence in some way reflects society's disapproval. There may well be good arguments against a mandatory system, but we should not abolish it in this way.

The law of homicide is an important and sensitive area where it is critical that we do our best to get things right. We as a Government have proceeded in a particular way with a staged reform of the law, undertaking extensive consultation with stakeholders along the way. My noble and learned friend the Attorney-General reassured the House in Committee that we will look at the commission's other recommendations, in particular those for a new structure for homicide in due course, in the light of the effect of any changes arising from this stage of the work.

In that context, the law already provides, and under our proposals will continue to provide—we shall debate that later this evening—partial defences to murder which can reduce murder to manslaughter. Murder is not reduced to another term but to another offence, manslaughter, in those tightly defined circumstances where as a society we feel that it should be open to the judge to have a wider range of sentencing options.

However, the "extenuating circumstances" amendment goes much further than this. In the words of the Law Commissioner, Professor Jeremy Horder, it would, if passed,

"effect the most radical shift in the law in favour of convicted murderers since the abolition of the death penalty".

The amendment provides that in homicide cases the judge has the power to direct the jury that, when finding a defendant guilty of murder, it should be open to them to find simultaneously that there were "extenuating circumstances". In those circumstances, the judge would then be permitted to impose a sentence other than life imprisonment, which means that a sentence other than life could be passed on a person convicted of murder, which means that the mandatory sentence is dead.

In Committee, it was argued that this amendment was an elegant way—and indeed, it has been argued extremely elegantly—of giving the judiciary greater discretion without removing the mandatory life sentence altogether. Personally, I prefer Law Commissioner Professor Jeremy Horder's more frank appraisal of its effect, that,

"the new approach rips the heart out of the mandatory sentence".

That is strong language, but can anyone who has listened to this debate not think that that is what passing this amendment would do? We oppose any amendment that would do away with the concept of the mandatory life sentence, whether by the front door or by the back door.

Here I risk offending, without meaning to, the noble Lord, Lord Pannick, but on this proposal, as the noble Lord, Lord Hunt, said, there has been no consultation with the wide range of interested stakeholders who have been involved in the development of our proposals. In an area such as homicide, where reasonable people disagree so strongly, and where the timetable for change has been sufficient to offer every opportunity for the engagement of stakeholders, effecting such a radical change, as this would be, without due consultation, is unacceptable.

Lord Clinton-Davis (Labour)

Is not the real truth that, whatever the time and whatever the circumstances, my noble friend would oppose any change along these lines? Would it not be more accurate to say exactly that than to say what he has just said? Why cannot he say, having listened to this debate, in which noble Lords all around the Chamber have expressed support for the amendment proposed by the noble and learned Lord, Lord Lloyd, that he will look at the debate and come back to it later on?

Lord Tunnicliffe (Labour)

My Lords, I remind noble Lords of the statement in the Companion on the interruption of speeches. At paragraph 4.37, it says:

"A member of the House who is speaking may be interrupted with a brief question for clarification ... Lengthy or frequent interventions should not be made, even with the consent of the member speaking".

I hope that noble Lords will reflect on that before we have more interruptions that are neither brief nor clearly just for clarification.

Lord Bach (Labour)

I come back to my noble friend's comment. Of course I welcome this debate, which is part of the wider debate that we should be having on the law of murder. I cannot but believe that, when we come to have that wider debate, the debate in this Chamber this afternoon will be like a textbook for it. It will certainly be considered important. This debate is part of a wider debate, without any doubt, but I do not think that I could have been much clearer in stressing why the Government disagree with the amendment. What it actually does is to abolish the mandatory life sentence once and for all. It is a radical measure—and, once it came in, there would be no turning back from it.

In conclusion, I return to the heart of the issue. As has been said:

"Either the mandatory sentence stays or it goes".

We do not think that this particular way of circumventing it is a solution to the problem. Those were, again, the words used by Professor Horder of the Law Commission in response to this amendment—and we agree.

Before finishing, I shall make two very small points on the amendment. I do not want to waste the House's time, but one part of the amendment refers to the Attorney-General's powers. She would have powers in any event, whether or not that was in the amendment. I know that the noble and learned Lord says that, but it is obviously there for the sake of completeness. There is a slightly greater problem with what she would be able to do in the event of a sentence being appealed against for being too lenient. She might not be able to challenge the extenuating circumstances finding, which would go to the heart of the non-life sentence, because that finding would be part of the verdict about which she has no concern at all, as part of her powers, rather than the sentence itself. I think that that point may be accepted around the House.

For the reasons that I have stated, we cannot support the amendment in the name of the noble and learned Lord.

Lord Lloyd of Berwick (Crossbench)

My Lords, we had a remarkable debate in Committee on this amendment, and have had an even more remarkable one this evening. I am grateful to the noble Lord for his reply. However, this is not an amendment to abolish the mandatory life sentence. I disagree, as he knows, with Professor Horder, when he says that it would rip,

"the heart out of the mandatory sentence".

It would do no such thing. It provides a limited exception to the mandatory life sentence, just like the existing limited exceptions of the partial defences of provocation and diminished responsibility.

I thank all those who have supported the amendment. I am particularly grateful for the psychiatric support of the noble Baroness, Lady Murphy, the philosophic support of the noble Baroness, Lady Warnock, and the theological support of the right reverend Prelate, and for having converted the noble Lord, Lord Stewartby. Perhaps the noble Lord might go and convert some of his fellow Back-Benchers, and we might then have a chance of winning this debate. In the mean time, I wish to take the opinion of the House.

Lord Hunt of Wirral (Conservative)

My Lords, Amendments 57, 58 and 59 would add to Clause 46 another category of persons to whom the partial defence to murder of diminished responsibility should apply. That category is, in short, children or young persons under the age of 18. The reasoning behind this is straightforward. The partial defence of diminished responsibility is available under Clause 46 to a person who is suffering from a mental abnormality that arises from a recognised medical condition, which impaired his or her ability to act as one would expect a person to act without such an abnormality in a way that explains why the murder took place. For example, a 40 year-old man who had the mental capacity of 12 year-old child would be able to draw on the partial defence. The amendments try to address an anomaly. While the hypothetical 40 year-old would have a partial defence because he could not help but act as a 12 year-old, a child who was actually 12 years old but with no medical condition, who acted in the same way, would not have recourse to the same partial defence.

This is not an unreasonable thing to take into consideration. It is quite possible that a 12 year-old child may not, simply as a result of his age and developmental immaturity, have the capacity to understand his conduct in a way that we would expect of an adult. Therefore, the amendment does not simply provide a get-out-of jail-free card for young people who have committed the appalling crime of homicide. They must still be able to show that the degree of their developmental immaturity was such that they could not without impairment fulfil the requirements of proposed new subsection (1A):

"(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control".

Lord Clinton-Davis (Labour)

My Lords, is there in any legislation the provision for developmental immaturity? I would be very interested to hear about that.

Lord Hunt of Wirral (Conservative)

My Lords, I am unaware that there is any direct precedent for this amendment. However, we are seeking to probe and hear from the Government as to how they will deal with the circumstances that I have just outlined. I hope the noble Lord, Lord Clinton-Davis, understands that that is our approach.

Earl of Listowel (Crossbench)

My Lords, I beg the noble Lord's pardon, but are the Government themselves not introducing in this clause the defence of developmental immaturity?

Lord Hunt of Wirral (Conservative)

My Lords, I think the noble Earl has misunderstood.

Earl of Listowel (Crossbench)

My Lords, I have misunderstood; I apologise and withdraw what I said.

Lord Hunt of Wirral (Conservative)

My Lords, I agree with the noble Earl: it is quite difficult to get one's head around exactly what this amendment seeks to do. I suppose I am trying to emphasise that there should still be a high bar to overcome before the defence could be successfully deployed. Even if it was successful, noble Lords must remember that Clause 46 allows a partial, not a full, defence. The conviction is not overturned but reduced from murder to manslaughter. That is important because, as noble Lords well know, a conviction for murder attracts the mandatory life sentence, whereas a broader range of sentences—which may be more appropriate in the circumstances—are available for manslaughter.

These amendments were proposed by the Standing Committee for Youth Justice in an effort to give effect to the Law Commission's recommendation in its 2004 report, Partial Defences to Murder, which was itself designed to bring the criminal law into compliance with Article 40 of the United Nations Convention on the Rights of the Child. In Committee your Lordships gave these and other similar amendments a full and considered debate. I think considerable support was then voiced around the House for them. I therefore hope that the Minister and his colleagues have been able to reflect on these amendments over the summer and will give them a serious hearing. I beg to move.

Baroness Murphy (Crossbench)

My Lords, I support this amendment. The problem is to do with so-called normal children. The noble Lord has already talked about the partial defence that is available to the mentally handicapped adult who is intellectually functioning, or who may have a developmental delay in other emotional areas as a result of learning disabilities, for example. The law provides for that, but developmental delays are quite frequently seen in perfectly normal children. Children all develop at different rates in different parts of their brains. Heavens, I could talk about the development of the medulla being at a different stage to that of the frontal lobe, and at a different stage to the parietal lobes, but I do not think that I need to. All noble Lords who have had children and adolescents around the house will know very well that there are different stages. It is normal for children to have different stages of developmental maturity at different ages in the course of growing up.

All the amendment seeks to do is to allow for children without obvious profound developmental delay or learning disabilities to be considered in respect of those areas where they may have very specific emotional or developmental problems. Really, it would allow them to be treated in the same way as adults. As the noble Lord, Lord Hunt, has said, this does nothing to lower the bar and, indeed, still allows a court to find murder in the right circumstances and diminished responsibility in others. This amendment would allow for a very small group of children and adolescents to be treated more appropriately, given that we have now given up the doli incapax provisions, and the difficulties that children now face before the courts.

Earl of Listowel (Crossbench)

My Lords, I have my name attached to the amendments, and I strongly support them. It is hard to follow the eloquent and pithy contribution from my noble friend, with all her experience in psychiatric matters. As vice-chair of the All-Party Group for Children and Young People in Care and a trustee of a fostering agency, I am particularly concerned that children who have experienced trauma may not be recognised or caught by the system. We should treat all our children fairly and, in particular, take care to treat our neglected children fairly.

I will never forget hearing from a 20 year-old ex-offender—a young woman—about her experience of being removed from her children's home at the age of 14. She was told on the day of her removal that she was to be given another placement, having settled and become attached to where she was. She was then forcibly removed from her children's home. At the age of 20, when she spoke to parliamentarians in the House, she said that she dated her history of criminal activity from that experience. On another occasion I heard another young woman describing her experience in a children's home. It was as if she was describing a waiting room for prison. Children develop differently, as my noble friend has said. Neglected children can follow particularly tortuous lines of development. These amendments seek to recognise that. It is possible to be developmentally immature without having a recognised abnormality of mental functioning. The law needs to recognise this.

In April of this year, at a one-day legal conference organised by the Michael Sieff Foundation, Lord Justice Toulson, chairman of the Law Commission, described the omission of these amendments as "significant". He said:

"The inclusion of the phrase 'a recognised medical condition' in the definition of diminished responsibility would represent a tightening as well as a clarification of the defence, but to include that requirement while excluding developmental immaturity in the case of a young offender has consequences which I do not think could have been thought through. It produces the bizarre result that if a 25 year old killer has the developmental age of a 12 year old ..."

Here I end the quotation because I think we have already covered that point. The point here is that Lord Justice Toulson, the chairman of the Law Commission, in referring to the current clause, talks about,

"consequences which I do not think could have been thought through"

and uses the term "bizarre" in describing the way that the commission's recommendations on this matter have been treated.

I strongly support the amendments and hope that the Minister may now agree to them. I have good reason to hope that he might, given the achievements for children, particularly vulnerable children, that he and his colleagues have been responsible for over the past 10 years. I look forward to his response.

Baroness Butler-Sloss (Crossbench)

My Lords, I think we all feel horror at gangland killings by young people, but one has to put them to one side when discussing this amendment; one also has to remember that children of 10 are convicted of murder. Perhaps some children of that age should be convicted of murder, but others undoubtedly should not. To have a child of 10 detained for an indefinite life sentence is something that we ought to have in mind.

It is important that the emotional and physical immaturity of young people who kill should be taken into account. There is a lacuna in the law, which this amendment deals with. As several people have said, why should you be able to pray that immaturity in aid if you are over 21 but not do so if you are 14? There seems to be something grossly unjust in that. I, too, support the amendment.

Lord Clinton-Davis (Labour)

I am afraid I do not. I have a great deal of sympathy with the argument that is being adduced, but in my view the law has to be precise. The term "developmental immaturity" has no precedent, is not precise and ought to be rejected. The arguments that have been put forward invite us to visit the situation again, but that term has to be considered and revised. The one thing that I think about the law is that it has to be precise, but with the use of this term we are invited to amend the law in an imprecise way. I reject that proposition altogether.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, my name is attached to this amendment. I remind your Lordships of what I said on the previous amendment: nothing could be more imprecise than the words that are used in the proposed Clause 48 on provocation, or indeed more imprecise than the concept of provocation in the law as it exists at the moment. It has been through the courts over and again in an attempt to derive some clarity for the concept, yet the Government stay with it. So I am not moved by the suggestion of the noble Lord, Lord Clinton-Davis, that "developmental immaturity" is an imprecise term. Certainly the Law Commission, after looking at the whole of the law of homicide, came to the conclusion that the term could be the basis of a partial defence, in its Partial Defences to Murder published in 2004.

It is not just developmental immaturity that is at issue. The partial defence does not come into play unless it is shown that that developmental immaturity substantially impaired the defendant's inability to do one or more of the things that are mentioned, as in the proposed diminished responsibility clause; provides an explanation for his acts or omissions; and, further, that it is a significant contributory factor in causing the defendant to carry out the conduct in question. There are all sorts of hoops to get through.

I remind your Lordships that, again, it being a partial defence, the jury do not get to consider it unless they are satisfied that the defendant has killed someone with the necessary intent to kill or to cause serious bodily injury. That is the precondition before they even look at the developmental immaturity that is referred to here. This is a perfectly correct and proper amendment in principle and we will support it from these Benches, notwithstanding the Division that has recently occurred.

Lord Bach (Labour)

My Lords, Amendments 57, 58 and 59 in the name of the noble Lord, Lord Hunt of Wirral, deal with the important question of developmental immaturity in the context of the diminished responsibility partial defence to murder. We remain unpersuaded of the need for the amendments, and I will do my best to explain why.

The current reform of the partial defence to murder of diminished responsibility is designed to modernise the law; we do not intend it to change its scope fundamentally or at all. We do not believe that the law needs to be opened up in the way proposed. Interestingly, I can pray in aid the Criminal Bar Association, which takes the same view on this issue. Originally it supported the inclusion of a developmental immaturity clause in the diminished responsibility partial defence to murder, but it changed its position when responding to the consultation and now considers that it is not necessary.

Let us put that to one side, though, and deal with the issue. The current law of diminished responsibility does not include any such concept as developmental immaturity, and we have not been shown any convincing evidence of a problem with its absence. The new formulation in these clauses is based on the concept of a recognised medical condition. We do not consider that the defence of diminished responsibility should be available where no such medical condition is present.

It has been argued that that is unfair to juveniles, as it will be harder for them to benefit from the defence of diminished responsibility than for adults to do so. We do not accept that either. Where a defendant under 18 has killed, he or she may be able to benefit from the partial defence if they are suffering from a recognised medical condition. In many cases where the child defendant could be described as being developmentally immature, this immaturity will have resulted from a recognised medical condition; for example, learning difficulties, autistic spectrum disorder or frontal lobe disorder. One might characterise that as "abnormal" immaturity.

It has also been argued that a normal 10 or 11 year-old who must face the full force of the law is disadvantaged when compared with an adult with a recognised medical condition who functions similarly to a 10 or 11 year-old child and may succeed with a diminished responsibility partial defence. We think that there are some problems with that argument. First, it is not realistic to talk about people behaving in a way consistent with a particular age; behaviour varies so much, both between and within individuals of the same and different ages, that we are not sure that the concept is helpful.

Secondly, the reason why the adult in this scenario benefits from the partial defence is not that he is behaving like a child but because his medical condition results in a mental abnormality substantially impairing his ability to make a rational judgment, understand the nature of his conduct or exercise self-control. On the other hand, a child who is developmentally immature but who has no recognised medical condition is not suffering in this way; they are, as it were, "normally" immature.

In any event, we argue that this does not constitute an argument for a developmental immaturity limb to the partial defence to be added but, rather, for a change in the age of criminal responsibility. That is not a matter up for discussion today with regard to any amendments. It certainly was in Committee; I think it was the noble Baroness, Lady Murphy, who introduced such an amendment. If this is really an argument about the age of criminal responsibility, that is a different matter altogether. I do not believe that the noble Lord is arguing for such a change.

It has also been argued that clinical experts are not able to diagnose certain conditions in those under 18 where, if an adult displayed similar characteristics, this would result in a diagnosis of a recognised medical condition. However, we know that in practice the psychological conditions in relation to which this argument is made—for example, various personality disorders—are diagnosed in juveniles, so we do not think this is an insuperable difficulty.

It is our view that where a child over the age of criminal responsibility kills, they should be held fully responsible for their actions unless they are suffering from a recognised medical condition even if they are immature for their age. A developmental immaturity limb in the diminished responsibility partial defence would have a number of significant disadvantages. Let us suppose that a teenager, in a fight with another teenager, pulls the knife he routinely carries and stabs to death the other youth. He could potentially argue the defence even if he has no medical condition but is simply immature for his age, however that immaturity might be explained or described. We do not believe that a partial defence to murder should be even potentially available in such circumstances.

Again, we are concerned that young defendants would routinely seek to plead the partial defence, even in cases manifestly lacking any merit. The courts would be required to contend with this and it would inevitably lead to delays and unproductive use of criminal justice services. In 2007, 38 trials and 26 convictions involved homicide where the defendant was under 18, so the number of cases likely to be affected is significant. Importantly, we have not seen evidence that the absence of a developmental immaturity limb in the current law has resulted either in injustice or practical difficulties. For these reasons we oppose the amendment and invite the noble Lord to withdraw it.

Lord Hunt of Wirral (Conservative)

My Lords, I am grateful to the Minister for his response and to other noble Lords for their contributions. The Minister recognises that we are merely trying to reinsert a recommendation of the Law Commission. As the noble Baroness, Lady Murphy, said, the omission of developmental immaturity from Clause 46 is particularly serious in the context of the abolition of doli incapax. We have discussed this matter previously. I hope that the Minister accepts the reasoning behind the amendment. We shall consider carefully all the points he has raised and reflect on them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59 not moved.

Clause 48 : Partial defence to murder: loss of control

Amendment 60

Moved by Lord Hunt of Wirral

60: Clause 48, page 28, line 31, at end insert "caused by gross provocation"

Lord Hunt of Wirral (Conservative)

Amendment 60 seeks to add to Clause 48 the words "caused by gross provocation" as an explanation of why the defendant lost control and killed his victim. This is more a question of language than substance, but it is no less important for that. I recall that in Committee the noble and learned Baroness, Lady Scotland, pointed out that Clause 49(4) contained a qualifying trigger to the defendant's actions if his loss of self-control was attributable to,

"a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character",

and, (b), caused the defendant,

"to have a justifiable sense of being seriously wronged".—[Official Report, 7/7/09; col. 582.]

The noble and learned Baroness suggested that while the words "gross provocation" were not mentioned anywhere, their meaning was none the less captured by that subsection. I do not disagree with that analysis but I still feel that the term "gross provocation", which is long established and well understood, is worth preserving in the body of legislation. I believe that the term is more easily understood by a jury than the term "loss of control", which, without the necessary qualifications and explanations, sounds more anodyne than the behaviour we are describing.

I understand that the General Council of the Bar shares this concern and that it suggests that "loss of control" will not convey the right message. In its view, and ours, "loss of control" does not convey the same standing or high threshold as "gross provocation". For that reason we urge the Government to reconsider the Bill's drafting in this area. The amendment does not seek to change the substance of the partial defence but rather its description. Words are important and can play a role in informing perceptions. If the Government do not wish to change the drafting at this stage, the House would very much welcome a clear statement from the Minister on how "loss of control" will be interpreted in practice. For the reasons I have given in introducing Amendment 60—namely, that we are concerned about the interpretation of "loss of control" rather than whether the new partial defence is sound—we cannot support Amendment 61 tabled by the noble and learned Lord, Lord Lloyd of Berwick.

We have said at every stage that we regret how the Government are introducing these reforms. This should have been a Coroners Bill, a Reform of the Law of Murder Bill or any number of separate Bills. The Bill lumps together wildly disparate topics as the Government try to spatchcock in as many ideas as they can while they can. Perhaps I am being too cynical, but the reform of the law of murder and the partial defences which we are seeking and debating are huge and important topics that deserve full parliamentary scrutiny. However, we have the Bill that the Government have presented to us, and we accept the changes that these clauses seek to make. I hope the noble and learned Lord, Lord Lloyd, accepts that we do not believe that we should remove the clause from the Bill, but we have considerable reservations about it. I beg to move.

Lord Lloyd of Berwick (Crossbench)

My Lords, my amendment is grouped with this one, but I shall first address the Conservative amendment, which is good as far as it goes, but, as I hope to show, it does not go anything like far enough. My only comment at this stage is that if the Conservatives press their Amendment 60, they ought logically to support my Amendment 64; otherwise, they will reintroduce the concept of provocation by their amendment without any definition of what they mean by "provocation". They cannot rely on the common law definition of provocation or on Section 3 of the Homicide Act 1957 because they will have been repealed, unless they support my amendment. I look forward with great interest to see how they deal with that conundrum. It seems to me that they have probably argued themselves into a corner from which it may be difficult for them to get out.

On the broader question of whether we should leave Clauses 48 and 49 in the Bill, my view is that they are beyond redemption. But I should have supposed that the Conservatives would also have wanted to leave those clauses out, for this reason: they presumably intend—perhaps they hope—to win the next election. If they do, they will have to grapple with the main recommendations of the royal commission report on homicide, which the Government, to their shame, have so far ignored or at least done nothing about. If the Conservatives win the election and if they decide to support the proposals of the royal commission they will have to revisit the partial defences, including the partial defence of provocation. But, surely, it would be madness for them to agree to an amendment on provocation now and then seek to amend again in two or three years' time in the light of the new structure of homicide. Logically and sensibly—if they were logical and sensible, which I doubt—they should support Amendments 61 and 63.

Clause 48(1)(a) and (c) contain a succinct account of the law relating to provocation, which provides an objective test—the test of a reasonable man—which is so familiar to the law. If the jury decides that, as reasonable men and women, it would have lost its self control and done as the defendant did, the partial defence succeeds. The defendant is then convicted of manslaughter and sentenced accordingly. Currently, that test is being applied up and down the country. Since the case of Holley, which was decided by nine Law Lords in 2005, it is not causing any great difficulty—indeed, no difficulty at all so far as I am aware.

However, the Government in their wisdom have decided that juries are somehow getting it wrong. In their view, too many men are getting off light. They ought to be convicted of murder when they are being convicted of manslaughter. On 7 July, at col. 582, the Attorney-General said that in this day and age people ought to be able to control their anger. But the defence does not succeed just because the defendant kills in anger, it succeeds only if the jury, as reasonable men and women, would have done as the defendant did. If that is so—I see no evidence that it is not—why do we need a qualifying trigger? The answer is that we do not. The Government have simply not made out a case that the law as it stands is too favourable to men and women. The October issue of the Criminal Law Review states that making the defence of provocation is "unnecessary, unjust and wrong". I agree with that view.

What will be the consequences if we enact Clause 48? I doubt very much whether it will make the slightest difference. Juries will continue to apply the existing objective test of the reasonable man which they know and understand. I suspect that the Government will fail in their objective, just as they failed in their objective to increase the number of those who are convicted of rape. It will prove to be yet another paper exercise. But in all other respects the consequences will be disastrous. One should put oneself in the position of the jury, which has just been told to apply the objective test of the reasonable man. Only a few moments later, it is told that the test should be applied only if the reasonable man would have had a justifiable sense of being seriously wrong. If I know anything about juries, at that point it will begin to lose the drift. Not only juries will lose the drift, judges too will be mystified.

Judges will have to explain these qualifying triggers in words that the jury will understand. I fear that their attempts to do so will lead to years of appeals. In truth, the reasonable man test, set out accurately in one part of the clause, is inconsistent with the qualifying triggers which are set out in another part of the clause. It is either one or the other. It cannot be both at the same time.

The Government have not only that objective of making it more difficult for men, they also have the objective of making it easier for women to rely on the partial defence. Particularly they have in mind battered wives who kill their husbands after years of abuse. Here, I have every sympathy with the Government's objective, which was one of the reasons why I moved my earlier amendment. But the Government have set out to achieve their objective in the most extraordinary way. They have tried to shoehorn—to use a word used by the Attorney-General—the new partial defence based on fear into the existing partial defence based on loss of control. But that does not work.

The battered wife who decides after years of abuse to get rid of her husband does not lose her self-control. She makes a deliberate decision, which is itself expressly excluded by Clause 48(4). The Government agree that in those circumstances there should be no partial defence. It is only if the battered wife is driven by fear of what may happen in the future that she will have a partial defence. That was made abundantly clear by the Attorney-General on 7 July 2009 at col. 384. But how does the jury begin to distinguish between revenge for the past, which is excluded, and fear for the future, which is the whole object of this proposed amendment? How in either case can it be said that she has lost her self-control, even with the new qualification that loss of control need not be sudden—whatever that may mean? A gradual loss of control still entirely escapes my understanding.

At the end of Committee stage, I quoted the pithy observation of Professor Spencer who said that, if this is the best the Government can do, they would have done better to do nothing. I now quote another pithy observation, from a distinguished practitioner who said that to call this a,

""dog's breakfast" would be a kindness".—[Official Report, 07/7/09; col. 577.]

That was the observation of the noble Baroness, Lady Mallalieu, and I agree with it. I shall not vote in favour of Amendment 60, which seems only to scratch at the surface. However, when the time comes I shall move my own amendment, which would leave the clause out altogether.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I have already indicated to your Lordships that I do not consider the present common law defence of provocation to be a sensible defence. It does not stand up to analysis at all. I happen to think that the Government are making it even worse in the amendments that they are proposing in the Bill. They are using various expressions that are so inadequate and so difficult to understand that a jury could not, for a moment, follow the summing up that a judge would be obliged to give.

I do not need to speak at length on this. As far as I am concerned, the Government are making a major error in trying to use part of the Law Commission's report to amend the law on homicide, instead of either taking or rejecting the whole thing. There have been calls by the noble Lord, Lord Hunt, for a completely new look at the whole thing. I hope that that is still his position; if it is, he will support the noble and learned Lord, Lord Lloyd, in the Division that he has suggested will happen. If the noble Lord does that, it would be quite wrong for any newspaper or journalist to suggest that the Conservative Party had, all of a sudden, become weak on crime.

Had the amendment moved by the noble and learned Lord, Lord Lloyd, been accepted, it would have strengthened the position that a person who committed murder was convicted of murder, even though there might be extenuating circumstances. These partial defences, which change the terminology simply in order to give the judge a wider sentencing power than he presently has with the mandatory life sentence, form what is just a device—and one that has outworn its usefulness. The whole of this should go.

Lord Bach (Labour)

My Lords, Amendment 61, tabled by the noble and learned Lord, Lord Lloyd of Berwick, would remove Clause 48 from the Bill. The effect would be to knock out the first part of the proposed partial defence to murder, of loss of control, but it would effectively mean the end of the attempted reform of this part of the law. That is not acceptable.

We understand that for some—I think that the noble Lord, Lord Thomas of Gresford, is one of those—change in the law on homicide has been too slow to come. Many in this House would have preferred to see us deal with all the Law Commission recommendations as one. That has not been done. Instead, we have decided to take a staggered approach, part of which is to take note of our responsibility to take the opportunity that we have today to reform what we consider an outdated piece of law, which many think is a mess.

It is not just us in Government who believe that the current law of provocation is not satisfactory. In its report Murder, Manslaughter and Infanticide, published in November 2006, following extensive consultation with a wide range of stakeholders, the Law Commission said that,

"the partial defences remain misleading, out-of-date, unfit for purpose, or all of these".

Indeed the Law Lords themselves, when they passed judgment in Holley, accepted that the law of provocation was "a mess" and beyond their ability to retrieve. It will be remembered that the noble and learned Lord, Lord Nicholls, in delivering the majority verdict of the nine-member Judicial Committee of the Privy Council in that case, said:

"In expressing their conclusion ... their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts ... Their Lordships share this view".

We are convinced that, in today's world, a person should not normally be even partially excused for killing when their actions were prompted by anger. For that reason, we are abolishing the partial defence to murder of provocation, which, in our view, allows for the possibility of defendants escaping a murder conviction and the ensuing life sentence in too many cases where what gave rise to their loss of self-control was not an extremely serious action or series of actions.

We considered going as far as removing a partial defence to murder completely in cases of killing in anger but concluded, as did the Law Commission, that there might be extreme circumstances where injustice would result if a partial defence were never available. For this reason, a partial defence to murder will be available only to someone who kills in anger if the words or deeds causing them to lose their self-control constituted circumstances of an extremely grave character, which gave them a justifiable sense of being seriously wronged, and if a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way.

On the other hand, where a fear of serious violence drives a person to lose their self-control and to kill, we believe that it should be possible for a defendant to plead a partial defence on that specific basis, so long as a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way. The current law is simply not designed to deal with such cases; the courts' efforts to accommodate them have required a strained interpretation of a defence that was always intended to cover killings in anger rather than in fear. This may typically, but not exclusively, arise in situations of long-term abuse, where the victim of that abuse eventually loses their self-control and kills their former partner and assailant, fearing further violence. It may also be relevant in situations where the full defence of self-defence fails because a defendant, who has lost their self-control, uses more force than it is reasonable for them to use. We believe that our clauses achieve the right balance because the defendant may plead the partial defence only in relation to when they lost their self-control and not if they acted in a considered desire for revenge, even if they feared serious violence.

Amendment 60, in the name of the noble Lord, Lord Hunt of Wirral, would add the words "gross provocation" to Clause 48(1)(b). It would have the effect of adding a new element to the test not just for one limb but for both limbs of the new partial defence. I reassure the noble Lord that the ground covered by the Law Commission's "gross provocation" recommendation relating to things said or done is already reflected in Clause 49(4). "Gross provocation" was merely the title that the Law Commission chose for the limb of the partial defence now included in that clause. We argue that it did not have a life of its own, so to speak, as it unfortunately does in the noble Lord's amendment. We believe that the amendment is therefore wholly unnecessary and that there is a danger that it would cause confusion. Subsections (3), (4) and (5) of Clause 49 already spell out the qualifying triggers to which the loss of self-control must relate for the partial defence to apply.

Further, we think that Amendment 60 would create significant problems. As I said, it would apply the "gross provocation" requirement to both limbs of the partial defence, but the "fear of serious violence" limb of the new partial defence to murder is intended to apply in a more tailored way to where a person kills in fear than does the current partial defence of provocation. It achieves this by focusing on what the defendant feared in the future, rather than being based on what occurred in the past.

Introducing a gross provocation requirement to the test for fear of serious violence begins to undermine that approach. Its effect would be that killings committed in fear would still have to be squeezed into a partial defence directed at killings committed in anger. It should be pointed out that the Law Commission did not apply the gross provocation label to the fear of serious violence limb, so doing that would be inconsistent with the commission's approach.

In short, we think that this additional hurdle of gross provocation is inconsistent and that it would make it much more difficult to argue successfully the fear of serious violence limb of the partial defence of loss of control. For those reasons, I invite the noble Lord to withdraw his amendment. If, as he has made it crystal clear that he intends to do, the noble and learned Lord, Lord Lloyd, takes his amendment to the opinion of the House, I shall have to advise Members of the House to vote against him.

Lord Hunt of Wirral (Conservative)

My Lords, I suppose that I should be grateful to the noble and learned Lord for saying that the amendment is good as far as it goes, but I know him well enough to know that that is a compliment. He said that I was in a conundrum. I do not want to be quixotically chivalrous but I think that, were I to look, as he advised me earlier, in the Oxford English Dictionary, I would find that he meant a cul-de-sac. For me, a conundrum is a riddle whose answer is a pun. However, I think that I can do no better than say what I said before, including to the noble Lord, Lord Thomas of Gresford: I think that we are debating issues which demand full parliamentary scrutiny and which would have been far better in a Bill of their own entitled "Reform of the Law of Murder Bill".

I sense that most of your Lordships are dissatisfied with the way in which these debates are proceeding because we are, as has been pointed out, scratching at the surface of an area that needs some careful systematic reform after the fullest possible public consultation. I summarise by saying that we do not support the noble and learned Lord, Lord Lloyd, in removing the clause from the Bill; we do, however, still feel that the Government have time to reconsider the drafting of some of these clauses and we urge them to do so. In the mean time, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Amendment 61

Moved by Lord Lloyd of Berwick

61: Leave out Clause 48

Lord Lloyd of Berwick (Crossbench)

My Lords, I wish to take the opinion of the House on this amendment. However, if it does not succeed, I shall not be moving Amendments 63 and 64. I hope that that will be of some comfort to the House.

Report (2nd Day) (Continued)

Lord Thomas of Gresford (Liberal Democrat)

Before the break, I expressed my views on the current law on provocation and the Government's proposals to amend it. However, one thing is glaringly inconsistent in the way in which the Government are moving—Clause 49(6)(c). It appears that every human emotion can be invoked as a qualifying trigger for the loss of self-control, except something that has been done or said which "constituted sexual infidelity".

For some reason, which I really do not understand, the Government seek to remove from provocation the issue of sexual infidelity. That can apply to a male or a female defendant. I have been thinking about my own experience, and in all probability I have come across sexual infidelity as a trigger for a female rather more than for a male. In other words, a philandering husband is the person who causes the loss of self-control by the wife, rather than the other way round.

I spoke in Committee about the betrayal of trust involved in sexual infidelity. Sometimes arrangements are arrived at between husband and wife that you would not expect to lead to a loss of self-control—almost an agreement. But there are cases in which there has been a deep bond of trust between the partners, or at least one of the partners has thought there was, and they have been betrayed. That betrayal gives rise to the deepest of emotions, which can lead to anger, jealousy, and indeed to picking up a carving knife. I remember in one case a lady picked up a bread knife and put it down and picked up the meat knife to murder her husband, which rather suggests that she had an intention to kill or to cause some really serious harm.

This removal of sexual infidelity as a cause of loss of self-control is just illogical and not desirable. I do not wish to repeat what I said in Committee, since this is Report, but the whole of the amendments that the Government have made are in my view obnoxious, and this is outstandingly obnoxious. What it really reflects is something that has run through the 12 years of this Government—a refusal to trust the good common sense of a British jury. They are the people who decide what the standards are, how deep the hurt is, and what justification there can be for the action of a particular defendant. I would rather leave these issues to the jury, if provocation has to stay, and not confine their consideration of the marital or other relationships between a man and a woman or a man and a man or a woman and a woman. I should rather leave it to their good common sense to determine whether murder, which is proved, should be reduced to manslaughter by reason of the partial defence of provocation. I beg to move.

Lord Henley (Conservative)

My Lords, my noble friend Lord Hunt and I seem to be splitting the murder issues between us. My noble friend confessed that he last saw much crime when he was doing his law exams in the late 1960s. My knowledge is marginally more modern, in that I did my Bar exams in the late 1970s. However, I shall do the best I can. I hope that I can say that I know even less about sexual infidelity—but that is entirely a matter for me. After all, this is after dinner.

The noble Lord has laid out a compelling case for why this is, at best, a peculiar exception to be included in the Bill. It should go without saying that we do not suggest sexual infidelity to be an excuse or justification for murder, but that is quite a different thing from saying—as the Government hope to do—that the impact of another's sexual infidelity on a person's thoughts, actions and emotions should be disregarded entirely. As the noble Lord pointed out, there are different levels of infidelity. What this really involves is not the sexual relations of the defendant but a breach of trust.

We agree that a defendant who relied on sexual infidelity alone as a defence for murder without anything deeper or broader would be highly unlikely to succeed, and rightly so. But to select one aspect of human behaviour and totally exclude it as a consideration is denying the court the opportunity to weigh up the circumstances of the case in their entirety. We on these Benches sincerely doubt that a jury, in this day and age, would be convinced that a husband or wife should be exonerated from murder because the spouse had strayed outside the marital vow of fidelity. The Government are refusing to treat juries as panels of grown-ups, which is what they are, if they think that they should not be allowed to consider breach of trust in its correct place as part of the circumstances of the case.

We also question the Government's choice of wording. How does something that is said constitute sexual infidelity? A confession of past wrongs is just that—a confession. It does not constitute anything more. The presence of paragraph (c) is more to do with gesture politics than serious reform of the defence of provocation. Therefore, I ask the Minister to help us in our debate by explaining exactly the problems of this paragraph and why the Government included it in Clause 49. Is it a Law Commission recommendation or the invention of someone in the Government? The provision inhibits due consideration of all the events surrounding murder and denies proper deliberation of the factors that may raise a partial defence to that murder. The law would be better served with its removal, and we on these Benches will support the noble Lord, Lord Thomas, should he wish to press this amendment.

Lord Lloyd of Berwick (Crossbench)

I, too, support the amendment. As the House knows, I agree with the noble Lord, Lord Thomas, that the whole of Clause 49 is objectionable, but this particular paragraph is truly objectionable. It is little short of astonishing that Parliament should be asked to tell the jury whether sexual infidelity is enough for a man or woman to lose their self-control. I thoroughly support the amendment.

Lord Neill of Bladen (Crossbench)

My Lords, I, too, support the amendment. I apologise to the noble Lord, Lord Thomas, for not being here at the beginning of his speech, but I know very well his views on this topic. We would make ourselves look extraordinarily foolish if we say that a jury cannot take account of what most people recognise as being the most dominant cause of violence by one individual against another. Every opera you go to, every novel you read has sexual infidelity at some point or another. Otherwise, it is not worth reading or listening to. Forgive that aside, but it is the correct recognition of the literary position. It is mainly men killing women. I put that to a learned Member of your Lordships' House and was told that I had forgotten "Antigone", a play by Euripides in which the woman ensures that her male should-have-been lover gets his comeuppance on the beach when the wheels of the chariot go wrong. However, on the whole, it is the men. It is an incredibly powerful voice. In every newspaper you read there is a case where somebody has killed or attempted to kill a spouse, lover, lost lover or whatever. To rule this out as not being an area of activity where human passions are deeply engaged, leading to violent action, is absurd.

Lord Bach (Labour)

My Lords, Amendment 62 would remove the subsection which provides that, when determining whether a loss of self-control had a qualifying trigger, the fact that a thing said or done constituted sexual infidelity is to be disregarded. In spite of what the noble Lord, Lord Neill, may think, we understand and accept that passions may run very high when a person feels a strong sense of having been wronged by another. We have taken pains to stress this whenever these provisions have been debated, both in the other place and here. A person may, of course, be very deeply wounded by the behaviour of another, particularly if the two are partners and one of them has been unfaithful to the other. However, what we cannot concede is the suggestion that, at the beginning of the 21st century, it is acceptable to deal with such situations by resorting to violence—and not just violence. We are talking here about the deliberate use of such force that death results.

It has often been thought, because of the history of the partial defence of provocation, that men who kill their unfaithful wives can make use of that defence to evade a murder conviction. To put it bluntly, we do not believe that it is right or fair, or that it should be a possibility. The development of case law and the outcomes of more recent cases may suggest that this problem has been to some extent addressed; I concede that. Indeed, pleas of provocation on the basis of sexual infidelity normally now fail. However, the current law still allows the defence to be raised and, obviously, where a defence can be raised it will succeed from time to time. Frankly, we want to draw a line under all this. Our provision spells out that it is unacceptable for a defendant who has killed an unfaithful partner to rely on that unfaithfulness to try to escape a murder conviction.

This debate is all about a partial defence to murder and, specifically, about when we should deem it appropriate to reduce liability for murder to that for the less serious offence of manslaughter. Our conviction is this: killing in response to sexual infidelity is, well into the 21st century, as I say, not a defensible basis for such a reduction to be made. Indeed, I challenge those who oppose this provision and have spoken against it to explain why they consider that, when one person kills another, the fact that the deceased had been unfaithful to their killer should ever be enough to reduce a murder conviction to manslaughter. The Government believe that what we propose here is appropriate and proper for the times that we live in, so I ask the noble Lord to withdraw his amendment. If he will not, I will advise the House to vote against it.

Lord Thomas of Gresford (Liberal Democrat)

My Lords, the Minister seems to suggest that we are living in the past. That is not true. We say that the standard should be set by a jury, which must be under the age of 65; from our contemporary society; represents a cross-section of the community; understands the people in front of it; and can weigh these issues up in a way that we cannot in the House of Lords on 26 October. We cannot legislate in that way to cover all situations.

The noble Lord has confirmed—indeed, my noble friend Lord Carlile has confirmed—that you do not succeed in a simple case of infidelity with a plea of provocation. It requires much more than that today—more than it may have done if you went back to when this defence was first invented in 1707. That is how old provocation is as a defence to murder.

The standards of today are to be applied not by the Government in this House but by a jury, who will hear the whole case—all the facts, all the mitigation—and, by the standards that they believe are right for today's society, will determine whether this should reduce murder to manslaughter. I am opposed to that concept anyway, as your Lordships know, but, if you have to have it, to exclude sexual infidelity from the consideration of the jury altogether by statute is entirely wrong in principle. It is not that we are for husbands who kill their wives or wives who kill their husbands, or anything like that. It is the way our system works that standards are to be applied by the people—not, as in this instance, by the legislators. It is for that reason that I seek to test the opinion of the House.

Lord Carlile of Berriew (Liberal Democrat)

My Lords, in moving Amendment 65, I draw your Lordships' attention to its being grouped with government Amendments 66A and 135A. In the light of the previous debate, I should perhaps say that that is a result not of infidelity of any kind but of a meeting of minds on this subject. We are dealing now with the extraordinarily important and grave issues of war crimes, genocide and crimes against humanity. At the outset of what I hope will be a fairly brief speech, I wish to express my thanks to those other noble Lords whose names appear on the Marshalled List, the noble Lord, Lord Hannay, who has been an enormously wise adviser on this matter, and the Aegis Trust, which has done a tremendous amount of work in briefing Members of the House.

The headline of the attempt of those of us who wish to amend the law in this regard can be summarised in the three words "no safe haven". Our view is that there should be no safe haven for war criminals, genocidaires and those who commit crimes against humanity in any of the jurisdictions of the United Kingdom. No one should be allowed to stand and flaunt their past activities while in the UK without at least running the risk of being prosecuted. We are determined that our competent prosecution authorities should be able to exercise their discretion in the normal way, as with every other criminal offence in relation to such persons who may have committed war crimes, genocide or crimes against humanity.

Our approach to this difficult issue fell into two headings. One heading was "presence"; we argued that mere presence in the United Kingdom should render people liable to prosecution, as happens in some other countries in the world. We have had enormous co-operation from the Minister, his colleague in the House of Commons and officials in a number of robust—perhaps I may put it that way—meetings, in which there has been a strong exchange of views. That has resulted in what I believe is a satisfactory solution. The Government, however, have approached this from the point of view that only "residence" will do. From those positions, we—those of us favouring presence as the standard—have looked at something that we have been calling "presence minus", or presence qualified, while the Government have looked at something that we have characterised as "residence plus", or residence qualified.

In approaching the discussions that have been taking place, we have looked at various possible scenarios involving the de facto presence in this country of people who were guilty, were likely to be guilty or might be guilty of the sort of offences that we have had in mind. I look forward to hearing the Minister explain to the House, in due course, how at least most of our concerns have been met by residence plus, as set out in government Amendment 66A, in particular in its second part, which appears on page 13 of the Marshalled List of amendments.

Those of us who share my view have recognised throughout the effect of the law of nations, while there will be some who do not agree that we should recognise that law. We recognise the reality of sovereign immunity. When we recognise Governments, we may like them not one bit. Nevertheless, even if we do not like them we recognise them as Governments. There are many examples of our Government and other Governments negotiating successfully and leading to change in countries whose Governments we dislike very much. That depends, in part at least, on the law of sovereign immunity and in allowing officials, if they come officially to this country, to negotiate—not to be arrested as a result of complaints to the police, thereby frustrating the negotiations.

I, at least, believe that the government amendments, especially paragraphs (g) and (h) of subsection (1) of the proposed new section on page 13 of the Marshalled List, will remove a possibility that we cannot accept should be right. We believe that the amendments will remove the realistic possibility of known war criminals, genocidaires and criminals against humanity remaining in the United Kingdom—and I use that neutral "remaining" purposefully—without running the risk of being tried here. Can the Minister confirm that we have understood correctly that it is the Government's intention that people who remain in this country and whose presence is clearly undesirable—and whose presence the Government have made it clear is undesirable—will run that risk?

We recognise, of course, that there is an area of discretion to be exercised here, as there always is in relation to prosecutions. The discretion can be broadly summarised as the exercise of the public interest. In all international law, public and private, there are better and less good forums where trials can most meaningfully take place. I certainly accept that if somebody who should otherwise be tried for a war crime in this country can, realistically, be tried in their country of origin—where the evidence will be more accessible, probably stronger and more easily deployed—they can properly be the subject of an exercise of discretion that they should be tried in their own country. However, if that is not a realistic possibility, I hope that the Minister will confirm that people who fall into the much rehearsed scenarios that have been discussed at various times in relation to this part of the legislation will be capable of being tried here.

I say to the Minister that we have compromised, possibly more than we would have wished, and that we do not regard the idea of residence plus—residence with a number of factors defined as residence—as an entirely satisfactory solution. We certainly do not regard it as a perfect solution. However, we understand the legal and jurisdictional difficulties and are grateful for the distance that the Government have come from their original refusal to consider any variation on the word "residence" to the point that we have reached.

In summary, those of us who put our names to this amendment and who are now prepared to accept the Government's amendments believe that we have achieved something important both through the formal debates that have taken place on the Floor of this House and elsewhere and in the discussions that have taken place in the useful way that I have described. My belief is that we can feel a sense of having made a real contribution to better global criminal jurisdiction. I beg to move.

Baroness D'Souza (Crossbench)

My Lords, the background to this vital issue has been set out with great eloquence by the noble Lord, Lord Carlile. I should like to add that we are extremely grateful to the Government for having been so patient in listening to our concerns and, indeed, for having moved so far in meeting them. We are of course also indebted to the organisations that have provided consistent and expert advice: the Aegis Trust, Redress, JUSTICE and African Rights.

We stressed in our representations that we would wish to see the UK conform to several other countries that manifest a determination to ensure that genocide suspects are prosecuted and that the UK in no way acts as a safe haven for these people, of which there are still too many. We argued that a firm stance from the Government would act as a strong deterrent and, therefore, far from the courts being flooded with cases, there would in time be fewer, as no one would henceforth risk coming to the UK.

That said—and I recognise the broad inclusion of those considered to be residents—there are remaining opportunities for those suspects who arrive to receive medical treatment, to visit on business matters or even to visit their children at school in this country. Even these temporary visitors would, however, be liable for arrest, treated as residents and thus liable to prosecution if—I repeat, if—there were to be a dedicated and properly resourced unit within the Metropolitan Police whose task would be to investigate and follow up reports of suspected war and other heinous crimes. The mere existence of such a unit would act as a further deterrent to would-be visitors. Moreover, re-establishing such a unit—there was such a unit some time ago—would be in keeping with the Council of the European Union, which recommended that member states set up such units. Experience of other countries, particularly that of Sweden, shows these units to be highly successful in bringing about the prosecution of genocidaires and others suspected of serious crimes. That may be a hope too far, but its desirability at least should be on the record.

Once again, I thank the Government and, indeed, the Bill team and trust that they, too, will be satisfied to have been part of making a small but hugely important historical change.

Lord Henley (Conservative)

My Lords, perhaps I may intervene at this stage. It suddenly occurred to me that we are at Report with a major government amendment that fills some five pages of the Marshalled List setting out the Government's alternative version. Perhaps I may suggest that the Government intervene at this stage, as we could then have a proper debate. I think that it is open to the House to allow people to speak after the Government if the Government so wish it. I see nods from the appropriate quarters. If the Government set out their case and others respond afterwards, that might give us a better debate and speed up the proceedings of the House. I put that to the noble Lord. He can do what he wishes, but I think that he has received a nod to suggest that that would be appropriate procedure.

Lord Hannay of Chiswick (Crossbench)

My Lords, I am sorry to disagree with the noble Lord, but I have a couple of questions that I want to put to the Government and it looks as though I would not be in a good position to do so if the Minister spoke now. I therefore hope that the House will allow me a couple of minutes to put the questions. I am sure that we will then have the debate that the noble Lord wants.

Speaking in support of the noble Lord, Lord Carlile, and my noble friend Lady D'Souza, we are grateful to the Government for their initial move in Committee to make these crimes retrospectively recognisable under British law. They are now recognised from 1991, which catches a considerable number of potential criminals in Serbia, the former Yugoslavia and Rwanda. We are also grateful for all the work that the Minister, his colleagues and officials undertook in trying to meet our points. However, I still believe that presence minus would have produced a cleaner, clearer outcome than residence plus. The effort that the Government have made in Amendment 65B is acceptable, but it is more complicated by going down the presence minus route. To some extent, it amounts to the approach of the Red Queen saying, "Residence is residence because I say it's residence".

Nevertheless, I shall not look that gift horse in the mouth and would like to ask three questions. First, much of the interest in this subject was triggered by the Rwandans who the Government tried to deport back to Rwanda, where they would have stood trial, and who the Court of Appeal, quite correctly in my view—it is not my job to say so, but nevertheless—decided would not get a fair trial in Rwanda. It then turned out that they could not get a trial anywhere and they got off. I would therefore like to know whether subsection (1)(g) in new Section 67A in his amendment would, if it had been in force at the time when that occurred, have caught that sort of person.

Secondly, subsection (1)(c) of the new section refers to,

"an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom".

Can the Minister throw light on whether that covers those who come here for military training or courses? It sounds as though it does, because military training and courses are study, but I would like to hear that from the Minister. Of course, in certain countries, the military are only too likely to be those who are capable of committing, and in some cases have committed, such crimes.

Thirdly, can the Minister throw light on the impact of these fairly complex provisions on people who get long-term business visas, often for six months? Would they be caught if they fell within the scope of the categories that are applied?

I repeat that the Government have made a fair try of closing a loophole that should never have existed. We do not want in this House to go into how it came about in the first place, but I am sure that we do not want it to be there. Moving away from it is highly desirable. The more toughly and clearly we move away from it, the less these people will come to this country. Therefore, the problem that the Government see of an excessive demand on resources is self-solving: the tougher we are, the less they will come. The clearer we are that the culture of impunity will not be tolerated by this country, the more we will help the worldwide cause of preventing these appalling crimes.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I am in a dilemma because I would rather speak after the Minister, but I can speak briefly before if he prefers.

Lord Bach (Labour)

I shall rise now. It was important that the three Members of the House—I know that there were others—who were most actively engaged in talking to the Government and moving us from our original position should speak first in this debate. Their amendment is first, and mine follows. I am delighted to respond to their amendment and to set out the reasoning behind ours and explain what they will do.

First, I warmly thank particularly the noble Lords, Lord Carlile and Lord Hannay, and the noble Baroness, Lady D'Souza, for the enormous amount of time that they have taken in trying to persuade us that our original position was wrong. I thank them equally for not holding out for so long that we could not find a solution to a problem that is crying out for one. I am most grateful to them, as I am to my officials, and I am grateful for the thanks that have been expressed to them. They have worked extraordinarily hard to get what I hope the House will agree is a satisfactory conclusion to this difficult issue.

I thank all those who originally pressed us to look at the possibility of taking the highly unusual step of making the offences of genocide, war crimes and crimes against humanity in the International Criminal Court Act 2001 retrospective, and we have subsequently engaged in discussing and developing our position. Obviously they include Members of this House and the other place, some non-governmental bodies and both the Joint Committee on Human Rights and the Justice Select Committee. We are now proposing a real step forward in dealing with those who commit terrible crimes.

Let me deal with retrospection first. It is the terrible nature of the crimes in question that justifies us taking the radical step that we now propose to make the legislation retrospective. They are international crimes of the most serious gravity and demand an exceptional response. When we met in Committee on 7 July and I undertook to bring forth amendments, I said that we would cover the period from 1 January 1991 as far as the legal principles applicable to retrospection would allow. Our amendments deliver that. The date is pivotal in the development of international law. It is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute these three types of crime. It allows us to adopt the same date for all three areas, and it is not too far back to make successful prosecution impractical.

Our amendment is complex but it reflects the complex nature of the circumstances and the 2001 Act. We spent the summer studying in depth each element of the offences listed in the 2001 Act to identify the extent to which they could be properly tracked back to 1991. This has been a long and arduous task. We are satisfied that this can be done in a straightforward way for genocide and some categories of war crimes. It is clear that those offences and all their elements were fully recognised in international law by 1991, and our amendments reflect that.

The position in the other areas is less straightforward. While the vast majority of offences were recognised as criminal in international law by 1991, a small number may have been recognised at that time in a narrower form than appears in the 2001 Act, and a very small number may not have been sufficiently recognised at all in 1991. Indeed, international law naturally developed over the period in question, and it is important that our clauses cater for this to ensure the maximum possible coverage for that period—1991 to 2001. We have therefore developed a hybrid approach providing absolute certainty where possible, but elsewhere including a requirement that the relevant conduct amounted in the circumstances at the time to an offence under international law.

I pause briefly to observe that the hybrid approach does not mean that the offences where the requirement is not specified can be prosecuted even if they did not amount at the time to offences under international law—quite the contrary. It is only because there can be no doubt that they were fully recognised as criminal in international law throughout the relevant period that the requirement is not needed to ensure that we comply with the legal principles applicable to retrospection. I make one last point on the subject. With the same caveat as to the need for the conduct to have constituted a criminal offence in the circumstances under international law, our amendments provide for the ancillary offences and other forms of liability in the 2001 Act also to be tracked back to 1991.

I turn to the question of penalties. Our amendments broadly provide for the same penalties for the earlier period as in the 2001 Act. These are 30 years, or life where murder is involved. However there are two areas where, because domestic offences already existed at the relevant time, we are limited by the ECHR, as we cannot now impose a higher penalty than existed at the time. Those are domestic genocide—hopefully, fairly rare—which was covered at the time by the Genocide Act 1969, and grave breaches of the Geneva Conventions, covered at the time by the Geneva Conventions Act 1957. Where murder is involved, a life sentence is available. Otherwise, the maximum penalty is 14 years. Our amendments therefore adopt that maximum penalty in those two areas only, but otherwise provide for a maximum penalty of 30 years.

I turn to the important question of who the offences should apply to, which has taken up many hours of discussion and controversy. This is the issue dealt with in the amendment tabled by the noble Lord, Lord Carlile. This has been the subject of much discussion, and I am more than delighted that we have reached a decision on which we can agree.

We fully understand the concerns of those who argue that we should take jurisdiction over all those present here in respect of heinous offences, but to do so would be a highly unusual step. The arguments for retaining a definition based on residence—albeit residence plus—are strong.

First and foremost—and here absolutely on line with what the noble Lord, Lord Carlile, said, we believe that our overriding objective must be to deny the UK as a safe haven for serious criminals of this kind. It is arguable that those who are here only briefly might not be using us as a safe haven. Such jurisdiction is not required by international law, and we have always, whichever Government have been in power, been—in my view rightly—wary of assuming jurisdiction beyond our nationals and, exceptionally, residents without a clear international consensus to do so.

However, we must take our responsibility for those who are living here very seriously. Our first aim must always be that they should face trial in the country where the terrible crimes of which they are accused were committed. Where the countries concerned need help to bring their systems up to the point where they can meet human rights requirements, we will continue, as now, to work with them to help them to achieve that, but where trial in the country where the alleged crimes took place is not possible and the people concerned are living here, we must be able to act.

The definition of "resident" in the 2001 Act is left to the common sense of the courts to apply. We believe that the courts will do just that, but as was said in July, the amendments are intended to provide more certainty in some crucial areas of concern.

First and foremost, I must put firmly on record that what we are proposing here is limited to this legislation. It is justified by the extreme nature of the offences in question. We do not intend the amendments to impact on the meaning of the term "resident" in other legislation.

Our proposals have two elements. First, they contain a specific list of categories of people who are to be treated as resident to the extent that this would not otherwise be the case. Again, the caveat is important. The fact that someone falls into a specific category has no bearing on whether, if we had not taken this action, he might or might not have been considered a resident, and the provision of the list does not change the basic test—as before, any person who is a UK resident, regardless of whether they fall within this list, is covered by the Act. Secondly, we have included a non-exhaustive list of considerations that a court must take into account in determining the issue of residence.

I will turn first to the categories. They may well appear somewhat complex and daunting. I will run through them briefly. In broad terms, they are categories of people who are living here or want to live here or who are working or studying here. In more detail, the first group covers all those in the UK who have applied for indefinite leave to remain here, including those who are in the UK and whose application has been rejected. Those who have such leave will be covered wherever they are. In similar vein, the amendments cover all those who apply for asylum or make a human rights claim from the moment they arrive here, irrespective of the stage reached in their application or failed application. This will therefore include those whose applications have failed but who cannot be deported for any reason. Those whose claims have succeeded will also be covered wherever they are. Both these categories also cover anyone else who is here in the UK and who is covered in the claim; in other words, dependants, including spouses, named in the claim.

The amendments also cover any other person who is liable to be removed or deported from the UK but who cannot be removed or deported for human rights reasons or practical reasons, including those against whom a deportation order has been made. The third group comprises anyone who is here illegally, including illegal entrants or those who have overstayed their entitlement to be here. The fourth group comprises persons who are due to be deported on the ground that it is conducive to the public good to do so but who are still here because they are appealing that decision. The fifth group are all those here in lawful custody as defined in the amendment. Finally, the amendments cover all those in the UK who have leave to enter or remain to work or study.

Secondly, the amendments include a non-exhaustive list of considerations a court may take into account. These cover time—the period someone has been or intends to be here—purpose—why the person has come here—family or other connections to the UK and property. This list is non-exhaustive, but we think all these are points that it is worth ensuring a court bears in mind. It is a complex definition, but we believe it will provide certainty in crucial areas, and we believe it meets the valid concerns of those, including the proponents of the amendment moved by the noble Lord, Lord Carlile, that first, we must be able to deal with those living here who are alleged to have committed such heinous crimes; secondly, we must be able to deter others from coming here; and thirdly, if such people come here, we can ensure that, once detected, they will depart.

It is also important to point out that if individuals arrive in the UK and are known to be suspected of an offence of such a serious nature, they can be turned back at the port of entry. If it comes to light that a person who has been allowed in to visit the UK is a war criminal, he can be deported on the ground that it is conducive to the public good to deport him. There is no question that we have to tolerate non-residents here who have committed these sorts of crimes. The provisions will apply to England, Wales and Northern Ireland. Any similar changes in Scotland would be a matter for the Scottish Parliament and Scottish Executive to consider. I understand that the Scottish Executive is considering the issue as we speak.

To answer the questions asked by the noble Lord, Lord Hannay, I cannot refer to individual cases, but in respect of the two examples he referred to, on the military education study question, visiting armed forces who come to this country for the purposes of military training and study will not be within the list of categories of new Section 67A(1). They do not require leave to enter or remain in the UK. UK forces are already fully covered by the 2001 Act, as the offences apply to all persons subject to UK service jurisdiction. The list at new Section 67A(1) includes persons given leave to enter or remain for the purposes of work or study. Those coming here for the specific purpose of business for six months will be coming here for the purpose of work. As I understand it, the Rwandans would be caught by the provisions in our Bill.

I am sorry that I have taken so much of the House's time, particularly so late, but, as the noble Lord, Lord Henley, said, these are important amendments that have been tabled late in proceedings. We are all united in the desire to tackle heinous crimes of this nature as effectively as possible, and I hope the House agrees that our amendments achieve this. As I said, I am grateful to the noble Lord, Lord Carlile, and his co-signatories for their amendment and for the constructive and helpful discussions that we have had. I hope that, when the debate finishes, the noble Lord will withdraw his amendment and the government amendments can proceed into law. We believe that, when they do, Parliament will have played its part in improving this country's standing in the world.

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I am grateful to the Minister for the very clear way in which he has explained these important and complicated amendments, and I pay tribute to my noble friend and all those others who have done much more than I have to achieve the position that we have now reached.

I speak really only because I am a member of the Joint Committee on Human Rights, which produced a report in August on the impunity gap in the UK with regard to genocide, war crimes and crimes against humanity. We recommended that the residence test be changed to a presence test. What is most welcome about the government amendments is, as has been said, the decision to extend the jurisdiction of UK courts to prosecute genocide and so on back to 1 January 1991. That closes a very important impunity gap whereby Rwandan genocide suspects living in the UK could not be brought to account.

However, the Government have not changed the law to allow suspects who are present in the UK to be prosecuted unless, as I understand it, they are either a national or resident in this country. The JCHR, and if I may say so the noble Lord, Lord Hannay of Chiswick, regarded a presence-based test as far simpler than a residency test not least because the lack of a single definition of residence under the law of England and Wales made the test of residency uncertain. The International Criminal Court Act 2001 gives the rather unhelpful definition of a UK resident as a person who is resident in the UK.

When Sir Ken Macdonald QC gave evidence to the Joint Committee on Human Rights, he confirmed that there was no settled definition of what residency amounts to in English law and that residency means different things in different statutes. The witnesses who came to the committee expressed concern that several groups of suspects might benefit from the flexibility of a residence requirement. I mention this because I should be grateful if the Minister could confirm my understanding. Four groups in particular were identified: short-term visitors, such as those in transit or on holiday in the UK; people who are in the country for a longer period to undergo medical treatment; asylum seekers waiting for decisions; and short-term students.

As the Minister has explained, the Government have in essence given a detailed and unusual extended definition of residence that comes very close to a presence requirement. I welcome this but I want to be sure that I have got this right. The Minister keeps emphasising that, only for the purposes of this legislation, some of the categories that one would not normally regard as resident at all are to be treated as such for this extended definition. For example, one would not normally regard a failed asylum seeker as resident for other legislation, but such a person quite rightly is included here. I have mentioned four categories: short-term visitors in transit or on holiday, people undergoing medical treatment, short-term students and asylum seekers waiting for decisions. As I understand it, asylum seekers awaiting decisions are covered and are to be treated as resident for this purpose. The same is to apply to short-term students who are lawfully here, I hope that that is right. I am not sure about short-term visitors in transit or on holiday, but I imagine that they are covered. Equally, I am not sure about people undergoing medical treatment, and whether they would be regarded as resident for the purpose of the extended definition.

Finally, at Second Reading I raised the problem of the nationality requirement. The alternative basis for jurisdiction is UK nationality. The problem I mentioned was the position of a UK and an Iraqi citizen involved in a crime against humanity fleeing to the UK. The UK national could be prosecuted here in the UK, but the Iraqi national could not be unless he satisfied the residence requirement. I do not know whether what I have just said is correct.

Those are my points and I hope I have correctly understood the way in which the Government have moved. What it comes to is that they have moved close to a presence test but have prescribed on the face of the statute that which would otherwise be unclear, which is the special meaning of residence and which I regard as welcome. I should be grateful if my understanding could be corrected if I have got it wrong, as I probably have.

Lord Henley (Conservative)

My Lords, I can very brief. I intervened earlier and I apologise, but I was hoping the speed up the processes of the House by persuading the Minister to speak immediately after the movers of the amendment. Perhaps I may set out the views of these Benches. First, we are grateful to the noble Lord, Lord Carlile, for all he did at the Committee stage in bringing these issues to the attention of the House and ensuring that they were addressed. We know that much thought has been given to this matter over the ensuing months, and on this occasion, dare I say it, may I say how grateful we are to the Government that they have addressed these issues? It is to their credit that they have prepared their own amendments, albeit five pages of them, in response to those of the noble Lord. We are also grateful to the Minister and his department for keeping all noble Lords who are interested in these matters up to date with the evolution of the Government's thinking as it developed.

I can put it very briefly if I say that we are relatively happy with the Government's amendments. The list covers most, if not all, of the categories of persons who could be said to have intended to come to the United Kingdom for any significant length of time, and we therefore offer our support. The effect will be to prevent the United Kingdom being treated as a safe haven for those alleged to have committed crimes of this sort, and we hope that the noble Lord, Lord Carlile, and those who support him will also feel able to support the Government's approach. Obviously I do not know what the noble Lord intends to do, but we will hear from him and, I hope, from the Minister in due course.

Lord Bach (Labour)

My Lords, I shall try to answer the noble Lord, Lord Lester. I thank him and also the noble Lord, Lord Henley, for his helpful remarks earlier and for his support for what we are doing. It is much better if we can agree as a House on something like this. I should have mentioned the noble Baroness, Lady O'Cathain, who has just been in her place, because she, too, played an important role when these matters were discussed at an earlier stage. The noble Lord, Lord Carlile, mentioned—and I should mention also for the sake of completeness—my fellow Minister in the House of Commons, my honourable friend Claire Ward, and the Secretary of State, who both played leading roles in arriving at this final achievement.

Short-term visitors would not come within these categories, but if it is believed that they are suspects they could be deported on grounds of being not conducive to the public good. As to people undergoing medical treatment, if they are here for a long period they could, too—not necessarily but, as a matter of common sense—be deported if believed to be suspects. Asylum seekers waiting for decisions are covered, as are short-term students. That is all I need to say at this stage.

Lord Carlile of Berriew (Liberal Democrat)

My Lords, I am grateful for all the speeches in this important debate. My understanding was exactly that of my noble friend Lord Lester and I am grateful for the confirmation that the Minister has just given about the four categories raised by him. I am also grateful for the explanation that the Minister gave about the consequences of retrospectivity. Those of us who were concerned about these provisions recognised the difficulties and a solution has been reached.

The noble Baroness, Lady D'Souza, raised a question—which has not been answered—as to whether there will be a dedicated unit in the Metropolitan Police. I share her hope that such a unit will be created. It is probable that the Minister will be unable to answer that question immediately but perhaps he will be kind enough to write to those interested in due course when the consequences of these provisions for the Metropolitan Police have been absorbed.

With all that in mind, I repeat my gratitude to the Government and feel able to withdraw the amendment.

Amendment 65 withdrawn.

Amendment 66

Moved by Lord Alderdice

66: After Clause 55, insert the following new Clause—

"Exceptions to offence of assisting suicide

Notwithstanding sections 53, 54 and 55, no offence shall have been committed if assistance is given to a person to commit suicide who is suffering from a confirmed, incurable and disabling illness which prevents them from carrying through their own wish to bring their life to a close, if the person has received certification from a coroner who has investigated the circumstances, and satisfied himself that it is indeed the free and settled wish of the person that they bring their life to a close."

Lord Alderdice (Liberal Democrat)

My Lords, I wish to explain why I am bringing forward the amendment at this point. As some of your Lordships know, I tabled the amendment for the Committee stage at which another amendment in the name of the noble and learned Lord, Lord Falconer, and others covered a wider basis. I was asked to withdraw my amendment to enable the focus of debate to be clear so that your Lordships' House could consider it. However, both at the time and on reading Hansard subsequently, it became clear that there were certain important matters in my own consideration of the question which I wished to bring back to your Lordships' House, not for the purpose of pressing them to a vote but in order that we may facilitate the community as a whole in struggling with a difficult question that is now a matter of national discussion, particularly with the consultations of the Director of Public Prosecutions

It seems to me that in general debate and, particularly, when there is a vote in your Lordships' House and the other place, there is a tendency to polarise and to press the case for one side or another rather than to explore what is involved in complex and difficult moral questions. I look at this issue and see it, in a sense, as a matter of disability rights; for me, that is what the question is about. The terms of the amendment address the situation where someone is suffering from a confirmed incurable and disabling illness which prevents them carrying through their own wish to bring their life to a close.

It is always very difficult to put oneself in another person's place or to put oneself in a context other than the one which one experiences, because we tend to see things from our own perspective. However, we are all rather different in our approach to these matters. A disabled person or a person suffering from an illness can no more speak for all other people who are similarly disabled or suffering from that illness than an able-bodied person can speak for all others who are able bodied, because we see and approach things differently.

Let us consider the case of someone who wants to embark on the wholly legal activity of bringing their life to a close—it is no longer illegal, although there was a time when it was. They are living in a state of deep and ongoing distress and have come to a free and settled conclusion that this is what they wish to do, but they are, by the nature of the disorder and its disabling effect on them, unable to carry their own wish through. I ask your Lordships so far as possible to put yourself in that situation and to consider what it would be like to have come to the conclusion that one strongly wished to do that, but to be unable to lift a finger in order to act on one's own wishes and to be kept in that state of distress, pain and discomfort until one was in torture and quite unable to do anything about it. One's family and friends would have to endanger themselves in respect of the law in order to render the remotest assistance.

We have passed disability legislation—there was a debate on disability during the dinner hour earlier on in your Lordships' House—to make sure that, for example, if someone has a wish to pass a university examination but is in some way disabled from carrying through their studies or implementing the exam questions, the authorities provide assistance to the person. However, in this particular circumstance, not only do we not enable assistance but we make it a crime to assist someone who is living in an utterly tortured state and has come to the conclusion that they wish to end it. That conclusion is critical, because someone who is confirmed to be suffering from an incurable, progressive disabling disorder might come to the completely different conclusion that, whatever happened, they wanted to continue their life, and that, whatever their pain, difficulty or discomfort, they wanted to remain in a relationship with those who were important to them. Of course, such a person should be facilitated in every way to carry on with their life.

As someone who works with people who sometimes come to the conclusion that they want to bring their life to a close, I am not speaking in some kind of academic fashion. That is rather important. For me at least, morality and ethics are not some academic debate. That is what one actually does in relationships with real people; it is not a matter of speculation.

There are those who find themselves in the kind of context described in the amendment; whatever the odds, whatever the pain, whatever the discomfort, whatever the disability, they want—and I believe that it is the majority of people who find themselves in these circumstances—to sustain themselves and their relationships for as long as is remotely possible. Their doing so must be facilitated. However, to recognise that we are probably talking about the overwhelming majority of people does not mean that one should dismiss that important minority of people who have come to a free and settled conclusion that that is not what they wish to do. It is not that one or other should be forced in any way.

That brings me to one of the questions, because it has often been said that the problem about facilitating that minority's wish to take those steps is that it is the thin end of a wedge and that nasty or unpleasant friends or relatives might push those who did not wish to do such a thing into doing it. That is not an unreasonable concern at all. Then one asks if one should dismiss it because of the possibility, indeed the likelihood, that there would be such circumstances. I do not think so. One could justify that only if one had come to an a priori decision that in no such circumstances would one ever give any assistance to anyone in these circumstances. If not, and if one comes to a conclusion that there might be such circumstances but they need protections, it is an incumbent duty to look at what the protections might be to ensure that nothing malign is happening. In a sense, that is what this debate is about. It is an opportunity for people who say, "This is a worry and a concern, because people might be forced in a direction that they did not want to go, one way or t'other, and here is an alternative way, rather than the one in Amendment 66". I do not regard this as any kind of Holy Writ. It is a set of propositions to see whether we can find a way in which to take a step forward in this important and difficult question, which does not apply to huge numbers of people but nevertheless is important.

One question put to me was whether medical practitioners were suitable people. Well, I do not think that they are. If a person is to have the comfort, guidance and opportunity to come to a free and settled conclusion and to have a judgment made as to whether they had been put under pressure or whether it has been free and settled, someone in a judicial office is the right person to do it—preferably someone whose approach is inquisitorial rather than adversarial. That is why I proposed that it should be coroners, because they are used to trying to find out the truth of what is going on rather than what is simply the point of law. A perfectly legitimate argument could be made that someone other than a coroner should be doing this, and I entirely accept that. However, there is a requirement for someone who understands the law, is used to trying to find out the truth of what is going on and is sensitive to people and their families and the understanding of things and who has, by nature of their office, the facility to call people, give reports, explore the question and try to come to a reasonable conclusion. That would be someone who could call a specialist to say, "Is this an incurable disorder, or a progressive disorder?". They could call a psychiatrist—or more than one—to ask, "Is this person suffering from a depressive illness which, if treated, would resolve, and they would no longer have the wish to bring their life to a close? Or is this someone who is not suffering from a mental illness but has come to a clear, settled and thought-through wish to take this action but is not able to do so by nature of their disability?".

That is the chain of thoughts. Someone finds himself in this circumstance, wishes to do something, is unable to do so—and the protection is that it is not his own physician or even an independent physician who makes the judgment. It is someone who is legally and by experience qualified to explore these questions. Then, if they certify that this is the case and that the person has come to a free and settled view, they can provide a certificate, which would ensure that anyone who rendered assistance—although that does not mean that assistance has to be rendered—would not be breaking the law. Then we would not have what we are frankly in danger of having, which is an Irish solution to the problem. The Irish solution to the abortion problem is that you pass it on to somebody else and then feel justified; you are glad that somebody else is dealing with the problem. Sometimes we actually need to face the problems, struggle with them and try to come to a reasonable conclusion.

In such questions, it is often thought that one should maintain a conservative approach to such matters, and not change because if you do so you jeopardise things and move into danger. That is a serious misjudgment. There was a time when the majority of the medical profession believed that it was ethically wrong to provide chloroform to relieve the suffering of women in labour. That was theologically justified because, of course, a woman was to bring forth her children in pain. That was the view of society and the view of many doctors, although not all, thankfully. Now, we would not only regard that is not appropriate, we would regard it as not a moral position. It was the same with suicide. There was a time when it was regarded as a crime. Now, we do not see it in that way. We try to come to an understanding of it. These positions that we take are not immutable. Indeed, sometimes we come to a view later that is radically different from the one that we had earlier on.

Lord McColl of Dulwich (Conservative)

Which doctors objected to chloroform under those circumstances? I know that there were a few ministers of some churches, but I have never heard of a doctor objecting.

Lord Alderdice (Liberal Democrat)

If the noble Lord expects me to provide chapter and verse, either medically or theologically, I am not prepared to do that.

Lord McColl of Dulwich (Conservative)

Why not? The noble Lord made an assertion.

Lord Alderdice (Liberal Democrat)

If the noble Lord maintains that doctors and the medical profession have always been justified in their ethical and moral stance and have never had to change it, that is a position to which I would not hold, nor do I believe that he would. I offer it as an example, and we could look to providing the chapter and verse that he wishes, but that is not the issue. The issue is whether one is actually concerned to address the real pain and suffering in another person, or justify one's own present position and fears and concerns about changes that might take place. Or should one struggle with the difficult question of trying to find ways of ensuring that, in different circumstances, people are protected from the discomfort and pain that they are in?

I present this as a real problem, which is a matter of debate in our community and legal services. I invite the House, if it has other thoughts about how this matter might be addressed, to provide those for further consideration and thought, not necessarily in this Bill, but in future when, without any doubt, this will come back again and again and, I hope, with more light than heat, which is the contribution that I trust we make.

Baroness Butler-Sloss (Crossbench)

I would like to speak first on this, because although there are fundamental issues involved in this amendment, there are also some practical issues. The coroners were not consulted. They would have been pleased to have had the opportunity to discuss the amendment with the noble Lord, Lord Alderdice, but they were not given that opportunity. I have from the Coroners' Society of England and Wales a number of very practical objections, not of a fundamental nature, but of a nature that would make it very difficult for coroners to undertake this particular task—if indeed the House thinks that it is appropriate for it to be undertaken by anyone.

First, the coroners make the point that they are concerned with post-mortem investigations, not ante-mortem investigations. Their jurisdiction is derived from the presence of a dead body. The amendment would introduce an entirely new and, they consider, alien duty for coroners to provide an investigation before death. It would make the coroners potentially witnesses to facts, which is not their position as judicial officers. Unlike in Northern Ireland, there is no single national coroner service, nor under this Bill will there be, because each coroner will maintain his own separate records and would not have access to any national central register or database. Every "cross-jurisdictional border" inquiry, as it is known, generates its own series of letters and e-mails, so if the proposals were implemented there would have to be some arrangement for information to be provided across these borders.

It is thought that there would be a significant number of coroners who would, as a matter of personal conscience, have objections and refuse to carry through this function. There would therefore have to be a conscience clause, permitting individual coroners or their officers to refuse to participate in the ante-mortem inquiry and certification process. The other point, which is of some importance to the Government and the main opposition parties, is that there would be very serious cost and other resource implications in an already overstretched and underfunded service.

I hope that noble Lords will take those very practical points into account. In particular, if the noble Lord is going to propose that a particular service should take on a totally new duty, the very least courtesy, I suggest, is to ask it first.

Baroness Campbell of Surbiton (Crossbench)

My Lords, it is late; I will be very brief. The amendment yet again singles out sick and disabled people with progressive conditions for special treatment under the Coroners and Justice Bill. In effect, it proposes that they be regarded as more eligible for assistance with suicide than the rest of us. This is not equality for all. I do not wish to repeat myself; many noble Lords here today have already heard me speak at length about the kind of negative message that such an amendment would send out about the lives of those who are significantly disabled or terminally ill. My mailbag is full, and every day there is more about not wanting assisted dying than about wanting it. Noble Lords have also heard my appraisal of how these messages can translate into dangerous consequences for those in the most vulnerable situations.

Report stage is not the time for lengthy expositions of why this amendment would most definitely afford a lesser standard of protection under the law, especially for those who may feel under pressure to end their lives. I am grateful for the assurance that noble Lords will not press this amendment to a vote, because this is neither the time nor the appropriate approach for tackling such a deeply ethical and complex area. If we support this amendment today, we say that terminally ill and severely disabled people do not deserve the very best forum and process to deliberate their life and death choices. The amendment has profound, far-reaching consequences, which strike fear—I am afraid it is fear—and apprehension into the lives of those who struggle to make society recognise that their lives have value and should be supported. We must treat this arena with the greatest respect, care and thorough understanding towards all sides of the spectrum. This is not the place, and it is not the time.

Lord Patten (Conservative)

My Lords, I have three things to say. I will not indulge in any generalities, my distaste for assisted suicide having been well enough advertised in earlier debates. We had a wide-ranging general debate earlier that, with respect, I should have thought might have pre-empted the debate that we are having tonight. I thought that the debate was going to be about an amendment, as was advertised by the noble Lord, Lord Alderdice, but it is actually a debate of a very general sort—so we are back to where we were a while ago.

I wish to say three things. First, the amendment singles out sick people for special treatment under the Coroners and Justice Bill and proposes, in effect, that they be more eligible for assistance with suicide than the rest of us who are fit, well and healthy. It is very discriminatory in that sense, and that surprises me. The provision under the noble Lord's proposed clause may possibly suit a small number of highly resolute sick people who want assistance to end their lives, but it would afford a lesser standard of protection under the law to others who may feel under pressure to end their lives, whether from others or from within themselves. As such, I regard this provision as both discriminatory and highly dangerous, as the noble Baroness, Lady Campbell, has just said so clearly. It is axiomatic that the law must afford equal protection to all citizens regardless of their age, sex, ethnic origin, religion and, indeed, state of health. That is why I regard this suggestion from the noble Lord, Lord Alderdice, as essentially highly discriminatory.

Secondly, and here I am a mere echo to the noble and learned Baroness, Lady Butler-Sloss, the task of assessing applications for would-be suicides' assistants' licences is manifestly not a job for a coroner. The noble and learned Baroness has clearly explained to the House that the role of the coroner is to investigate and record causes of death, not to hand out licences to those who wish to help death to occur.

Thirdly—and I am deeply shocked to learn from the noble and learned Baroness that the coroners themselves have not been consulted; I thought that that happened automatically in the practices of your Lordships' House—to the best of my knowledge, coroners do not generally have the professional skills that would be necessary properly to investigate whether an apparent wish for assistance with suicide did indeed, represent,

"the free and settled wish of the person that they bring their life to a close",

with all the medical, psychiatric or psychological training that that demands.

I am extremely surprised that the noble Lord should have brought forward these suggestions in a way that has obviously caused great offence and concern to those who work as coroners to help us, let alone set them within a framework that is so discriminatory in its design.

Lord Low of Dalston (Crossbench)

My Lords, I have some sympathy with the noble Lord, but perhaps I might just make these remarks. Having had a full debate in Committee, I imagine that the House will prefer to be spared a surfeit of impassioned pleas at this stage in the Bill's passage and at this hour. At the end of the debate on the amendment of the noble and learned Lord, Lord Falconer, the Minister suggested that an amendment to the Coroners and Justice Bill was not the best way of dealing with the matter, and that the best way of pursuing it further would be through a Private Member's Bill. The noble Lord may feel that that would be the best way of pursuing his amendment also; indeed, from the way that he moved it today, it seems that that may well be so. We will shortly have the guidance from the Director of Public Prosecutions, and the noble Lord may feel that it would be best to wait to see what effect that has before further stirring this particular pot.

At the same time, given the obvious concern that exists about this issue across the House, it might assist our further consideration of these matters if the Government initiated a partial inquiry into the whole question of helping another person to die. This would be in keeping with the noble Lord's desire that the issue should be approached in the round, not simply in an antagonistic fashion. The Minister said, in response to a Question from the noble Lord, Lord Warner, in this House on 20 October, that he would take away the suggestion of a partial inquiry. I strongly support the noble Lord's request and very much hope that the Government can be induced to respond positively to it.

Baroness Finlay of Llandaff (Crossbench)

My Lords, the amendment is not about assisted suicide, but rather euthanasia. If a person cannot commit suicide, then the assistance is not assistance with suicide, it is murder, manslaughter or euthanasia depending on the situation.

The Dutch experience has shown that a considerable number of people do not feel psychologically able to commit suicide themselves but find the passive role of holding out their arm somewhat easier. We have evidence from Seale's work that there is no physician-assisted suicide in this country. The only thing I can commend in the speech of the noble Lord, Lord Alderdice, is that he did not see this function as being part of a medical practitioner's role. I agree. I was horrified that he did not stress that the role of medical practitioners is to relieve patients' distress.

The amendment covers most medical conditions from childhood onwards. Disabling and incurable illness is anything from arthritis to diabetes. There is not even a requirement here that the disease is particularly advanced. There is no requirement that the person has capacity. How long should their so-called "free and settled wish" persist? Does the certificate ever expire before the patient? Can parents get a certificate for their child? I could go on but I will not bore the House.

The concern of the coroners has to be listened to very carefully. This is alien to their remit. If such a service were set up, it would be inundated. Oregon's physician-assisted suicide prescriptions, which have been rising year on year, are an indicator. If we extrapolated those on a population basis, we would have about 1,400 requests. If we took the Dutch figures, which include euthanasia and would fit with the wording of the amendment, we would have around 12,000 requests. That would be a considerable workload for a coronial service which is already working hard. Coroners' certificates would need monitoring; otherwise, we might find fakes offered for sale on the internet, just as we do for ID.

This is Report stage. The amendment is so flawed that it seems to be euthanasia on demand masquerading behind a sanitising cloak of assisted suicide, without clear safeguards or monitoring, and we have already clearly rejected assisted suicide on two occasions. I fear that this amendment would sabotage the clause that was clearly drafted to ban internet suicide promotions. Such a ban is much needed.

Baroness O'Cathain (Conservative)

My Lords, looking at the amendment, I am struck by its dismal wording. It states,

"if assistance is given to a person to commit suicide who is suffering from a confirmed, incurable and disabling illness which prevents them from carrying through their own wish to bring their life to a close".

In other words, the noble Lord, Lord Alderdice, believes there is only one option if one is suffering from a confirmed, incurable and disabling illness; namely, the wish to bring one's life to a close by suicide. This is not the only option. Not only is it not the only option but I submit that those who indicate or imply that this is the only option are causing huge distress to those who have received the bad news that their illness is incurable.

I go off on a tangent for a moment in asserting that doctors are not infallible. They can, and do, make a misdiagnosis. They certainly can, and do, make a misprognosis. Nobody can accurately forecast the time and nature of one's dying. I go back to the main point of my intervention. The very wording of the amendment holds no hope for anyone facing death. The only option advocated by the noble Lord, Lord Alderdice, is to end it all in one's own time and at one's own wish. This is a travesty.

The previous two debates on assisted suicide that we have had in this House on the Bill of the noble Lord, Lord Joffe, and the amendment of the noble and learned Lord, Lord Falconer, have shown without peradventure that this House has little appetite for the issue. Nobody is thinking about the devastating effect these debates have had on those who have had the ghastly diagnosis that their illness is terminal. The publicity about Dignitas, the court cases and the endless press comments make all of us think, but what do they do to those who have had this diagnosis?

Let me tell you about my first-hand experience. In March, one of my dearest friends of 42 years was diagnosed with motor neurone disease. We were extremely close friends, to the extent that our husbands were involved in our friendship. We spent Christmases and went on holidays together. On the day of the diagnosis, I spoke to my friend within one hour. She asked only one question: "Can you help me get to Switzerland?". I had to say no, which was very difficult. I felt truly responsible to come up with an alternative. My immediate reactions were, first, to remind her of her total belief in her saviour Jesus Christ and, secondly, that I had to look frantically for help. I turned to two wonderful colleagues in this House, who I will not name.

Then began an amazing and encouraging period of experiencing the wonderful, caring and supporting characteristics of the services that are available. They included the local authority services of making adjustments to the home and the NHS in its instant response to whatever emergency arose. Above all, the hospice movement offered love, respite and the experience of feeling safe. Let us face it, the nearest and dearest of people who face this diagnosis are not necessarily the people who can deal with it best. The demands on them in emotional terms are absolutely awful, which I know from family experience.

My friend was registered with the hospice through the NHS. Every four weeks she had a week of respite for her, the ill person, and her husband, who was the main carer. Once a week, an ambulance was provided by the NHS. It took her to the hospice for a day of physio, occupational therapy, a bath and a hair wash, all of which were extremely important to her. As my dear friend explained, being with people who were much worse off than her made her feel truly humble and added a dimension to the end of her life that she had never experienced in 69 years. She felt safe in the hospice and, most of all, she was overwhelmed by the total dedication of the loving, caring and encouraging hospice workers.

My dear friend died less than six months after the prognosis of 18 months—again, it was a misprognosis. She died peacefully and accepted that she was going to meet her Maker. If she had gone to Switzerland, would she have had that loving, caring end? I do not need to answer that. There is an option to suicide and it is up to all of us to make it much more available to all. We must work towards that, but, in the mean time, please let us stop condoning, exulting and encouraging assisted suicide.

Baroness Murphy (Crossbench)

My Lords, before this debate, I had sought out the noble Lord, Lord Alderdice, and told him that I would not be supporting this amendment, rather on the lines outlined by the noble Lord, Lord Low. I had hoped that we would be moving towards a commission of inquiry into care at the end of life, which includes the way in which we help people to die. However, I have to say that, while I have listened to the illogical and vituperative messages from other Members of the House, I do not think that any of those noble Lords has listened to the arguments being put forward by the noble Lord, Lord Alderdice.

Let us forget the coroners for the minute; I do not think that anyone would see them as particularly appropriate people to do this. The noble Lord was pointing out that at the moment people with profound disabilities and severe illnesses, particularly those who are at the end of their life, are disbarred from making a decision that the able-bodied among us can make if we feel like it without the need for assistance. In this House, we generally support strongly the rights of people with a disability to access goods, services and care and to call forth special circumstances of assistance that are appropriate to individual needs. That is all that this amendment seeks to do in respect of a personal wish to end one's life. It is a wish that the rest of us are prevented from carrying out only if we have a mental disorder within the meaning of the Mental Health Act, although I accept for the moment that most people who wish to end their lives may have a mental disorder within the meaning of the Mental Health Act and do not therefore have a "free and settled wish", as it is rather unusually expressed in the amendment.

The amendment, on the face of it, presses for equality for people with disabilities and serious illnesses, which I applaud. However, for all the reasons that were set out by the noble Lord, Lord Low, I do not support the amendment as it is—and, of course, as we have said, this is not the time and the place. We need a further debate and, to look at all the issues, we probably need a further Private Member's Bill to come forward. However, I am amazed that people should have failed to listen to what the noble Lord, Lord Alderdice, was actually saying.

Lord Tebbit (Conservative)

My Lords, this amendment is about life and death, and there are not many matters of greater import. We have to look at it a little broadly. The law provides that we, as individuals, have no right to take life except in self-defence. It provides that the state, in acting for society, may take life or license the taking of life only in defence of the state or society itself. In short, the right or obligation to take life, or to license the taking of life, is strictly fettered and confined, and I believe that it should be so.

Many of those who regard humankind as no more than elevated animals are no less wary of fraying and fretting at those constraints than those who believe that life is God-granted and that the taking of life is to infringe on divine territory. Of course, that common position is less assured over whether we have the right to dispose of our own lives and, even less so, on whether we have the right or the obligation to assist others to do so. It seems to me that to claim, as the noble Baroness just did, that it is an act of discrimination not to assist a disabled person to take their own life, because an able-bodied person could take their own in the same circumstances, is a curious argument. One might as well say that, if a person is mentally ill and seeks to take their life, because they are disabled we should assist them to do so, because if they were able and had come to that conclusion they would have been able to do so. That is totally absurd.

Amendment 66 would decriminalise, under prescribed circumstances, the giving of assistance to certain classes of people to take their own lives. It would require a particular group of people, the coroners, to issue licences of immunity—that is, certificates that would turn what would otherwise be a criminal offence into a normal act that was not criminal. I do not like the idea of giving certain classes of people that right or obligation to say in advance that a certain course of action, which would otherwise have been against the law, is within the law. In my view, that is to tread on a slope that is not merely slippery but downhill to an extent where not even the ingenuity of the noble Lord, Lord Alderdice, can effectively prescribe limits.

I cannot imagine coroners welcoming this task of certifying who would qualify for a certificate of the kind described in the amendment, or which other group of people would be suitable for the job. Indeed, a coroner would have to decide whether the individual was capable of making a free and settled decision that he or she wanted to kill themselves. What about those suffering from dementia? How would they be treated? Would they be judged as being capable of taking a decision or not and, if not, would we be discriminating against them?

I am not sure that the noble Lord, Lord Alderdice, really has his heart in this. The expression,

"bring their life to a close",

has about it a taint of weasel words to avoid the use of the more accurate words "kill themselves". The plain fact is that there have been no prosecutions of people who have facilitated suicide by delivering those for whom life has become an excessive burden to the suicide factories in Switzerland. The fact that there could be such a prosecution may have deterred—indeed, I am sure that it has deterred—the compassionate from assisting the act of suicide in that way. Far more important, it has also deterred those who might have exerted pressure on a weak, ill and vulnerable person from whose death they might profit. In my view, the law is working perfectly well, or in some cases not working at all perfectly well, and we should leave it alone.

Bishop of Ripon and Leeds (Bishop)

My Lords, I, too, hope that we shall not proceed with the amendment, despite the power of the speeches of the noble Lord, Lord Alderdice, and the noble Baroness, Lady Murphy. Many of the things that I might have said have been said much better by the noble and learned Baroness, Lady Butler-Sloss, and in her most powerful speech by the noble Baroness, Lady Campbell.

I want to take up two points from what the noble Lord, Lord Alderdice, said. First, it sounded as though it was likely that those in this tragic and difficult situation would become the subject of court cases. There would have to be ways of discovering when an illness was confirmed "incurable and disabling" and what a "free and settled wish" was. Surely the experience of all of us who meet people in these sorts of circumstances is that the last thing that will be helpful for them, or which they want, is to become the subject of a court case.

Secondly, I do not think that the parallel being made with the disability legislation is accepted. I believe that it is true, as others have argued, that any legalising of assisted suicide will inevitably put pressure on the sick and vulnerable. It is not so much that relatives or others will deliberately pressure them but rather that there will be those who seek assistance to end their own lives because they consider themselves a nuisance. That is a state of mind that those of us involved in pastoral work recognise only too well as dangerous and destructive to the life of that individual.

Let us reject the amendment and increase our efforts to support and encourage palliative care and the work of hospices, which provide so much more appropriate a way forward for the tragic circumstances that the noble Lord, Lord Alderdice, described for us.

Lord Goodhart (Liberal Democrat)

My Lords, it is plain that there is little or no support in the House this evening for the amendment tabled by my noble friend Lord Alderdice, even from the noble Lord, Lord Low, the noble Baroness, Lady Murphy, and me, who supported, and remain supporters of, the amendment tabled by the noble and learned Lord, Lord Falconer, in Committee. Given that this debate has lasted for three-quarters of an hour, can I assume that it is now time to bring it to an end?

Lord Bach (Labour)

My Lords, I agree entirely with the noble Lord, Lord Goodhart. Perhaps I may make one or two final comments and then the noble Lord, Lord Alderdice, will respond. As the House knows, the Government believe that any change to the law in this area is an issue of individual conscience and, of course, a matter for Parliament to decide. We have been reminded of the debate that we held as recently as 7 July, when, on a free vote, the House came to a view.

The House has great respect for the noble Lord, Lord Alderdice, and for all those who have contributed to this debate on whichever side. Our firm view remains that the Coroners and Justice Bill has never been, and is not now the appropriate vehicle for change in the criminal law as it applies to assisted suicide. The provisions in Clause 53 do not change the scope of the current law. Our aim is to simplify the law by bringing together two existing offences, and to modernise the language to aid clarity and understanding. Conduct that is illegal now would remain illegal.

Unlike the amendment that we debated on 7 July, this amendment seems to tackle the issue of assisted dying head-on, by making it legal in limited circumstances to assist the suicide of a person who is suffering from a confirmed, incurable and disabling illness. The House has debated around this issue on a number of occasions, most notably in the context of Private Members' Bills introduced by my noble friend Lord Joffe. His second Bill was considered at some length by a Select Committee—some of whose members may be in the House tonight—chaired by the noble and learned Lord, Lord Mackay of Clashfern, which reported in April 2005. That committee did not take a position either way on the central issue, but it made a number of recommendations with regard to any future Bills that are relevant.

The moral and ethical issues raised by this amendment have been well rehearsed. I simply remind the House that, whatever the moral arguments, any Government are duty-bound to ensure that amendments to the criminal law are fit for purpose. It therefore falls to me to set out some of the difficulties with the amendments as drafted. These points pick up many of the themes that the Select Committee, chaired by the noble and learned Lord, Lord Mackay, identified. The amendment does not limit the rendering of assistance with suicide to doctors or address significant implications that legislation in this area would have for healthcare professionals. Nor, unlike the amendment debated in July, does it address the crucial issue of mental capacity. It refers to,

"confirmed, incurable and disabling illness",

which potentially goes much wider than terminal illness, but it does not define those terms.

We have already had the discussion on whether the coronial system and coroners are in any way appropriate. To be fair to the noble Lord, Lord Alderdice, he suggested in his opening remarks that that might not be so. I certainly get the impression, although I may be wrong, that the noble Lord has raised this issue, whether appropriately or not, late at night on Report, to have a discussion around it. He made it clear, and I was very pleased to hear it for a number of reasons, that he does not intend to press his amendment this evening.

Some members of the Government go one way on this issue, and others go the other way, and there is nothing wrong in that. The amendment arguably raises more questions than it answers. Any proposal to change the law would properly require detailed and careful scrutiny by both Houses of Parliament. This Bill is not the place for that.

Lord Alderdice (Liberal Democrat)

My Lords, I am grateful to all noble Lords who have participated in this debate, perhaps particularly to the Minister for pointing out the purpose behind what I am doing, and for drawing some attention to a number of the points that I made in my introduction, which were studiously ignored by a number of colleagues because of a degree of discomfort about the whole business.

I am used to dealing with people who have decided for the moment that they wish to bring their lives to an end. Before I left Belfast to come here today, I dealt with two such situations and, when I return tomorrow morning, I will be dealing with some more. It is a constant issue for me, and in making the judgment on whether it is free and settled will, which in the vast majority of cases it is not, hugely significant efforts must be made over periods of years to try to protect people from bringing their lives to a close when it is clearly a function of mental illness rather than of free and settled will. But I can appreciate that that is not the experience of many noble Lords—in many ways, these are rather more academic than political matters. But I make it clear that this is for that minority of people who do want to take such a course. The suggestion that somehow or other I do not understand that that, properly, is the desirable, alternative course for the majority of people is not really a fair listening to what I have said.

One can easily strike debating points. There was the issue about whether I could name a particular physician who had been opposed to chloroform. Well, as it happens, it was brought to my attention subsequently that one of the fiercest critics of Sir James Simpson, who developed the use of chloroform, was a professional colleague of the noble Lord, Lord McColl—the American surgeon, Henry Jacob Bigelow.

Let us not pretend that there are not people to whom this applies, even if it is a minority. Medical practitioners, politicians, theologians and others have not always got it right in terms of how the future judges their judgments about morality. This is not about putting disabled people in a bad place, but it faces the reality that they often find themselves in a bad place. Caring for that is not some academic issue, but a painful and difficult emotional issue with which we must find a way of struggling.

It is clear that the House is not at this point in a position to offer me any guidance as to how things might be taken forward in such a way that this small minority of people might have their concerns held, just as for the majority of people their concerns are being addressed. Despite the comments about the coroners, I still take the view that some judicial figure is more appropriate than a medical, theological or, perish the thought, political figure to make judgments of this sort. With that, and with appreciation of those who have struggled with these questions and continue to do so, I beg leave to withdraw the amendment.

Amendment 66 withdrawn.

Amendment 66A

Moved by Lord Bach

66A: Before Clause 64, insert the following new Clause—

"Genocide, crimes against humanity and war crimes

(1) The International Criminal Court Act 2001 is amended as follows.

(2) In sections 53 and 60 (trial and punishment of main offences), after subsection (6) add—

"(7) Subsections (5) and (6) are subject to section 65B (restriction of penalties in relation to retrospective application of certain offences)."

(3) After section 65 insert—

"65A Retrospective application of certain offences

(1) Sections 51 and 58 apply to acts committed on or after 1 January 1991.

(2) But those sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law.

(3) Section 52 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of England and Wales but for this section.

(4) Section 59 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of Northern Ireland but for this section.

(5) Any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence—

(a) applies to conduct in which a person engaged on or after 1 January 1991, and

(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(6) But sections 52 and 59, and any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence, do not apply to—

(a) conduct in which the person engaged before 1 September 2001, or

(b) conduct in which the person engaged on or after that date which was ancillary to an act or conduct which—

(i) was committed or engaged in before that date, and

(ii) would not constitute a relevant Part 5 offence, or fall within section 52(2) or 59(2), but for this section,

unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law.

(7) Section 65, so far as it has effect in relation to relevant Part 5 offences—

(a) applies to failures to exercise control of the kind mentioned in section 65(2) or (3) which occurred on or after 1 January 1991, and

(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(8) But section 65, so far as it has effect in relation to relevant Part 5 offences, does not apply to a failure to exercise control of the kind mentioned in section 65(2) or (3) which occurred before 1 September 2001 unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law.

(9) In this section "relevant Part 5 offence" means an offence under section 51, 52, 58 or 59 or an offence ancillary to such an offence.

65B Modification of penalties: provision supplemental to section 65A

(1) In the case of a pre-existing E&W offence committed before 1 September 2001, in section 53(6) "30 years" is to be read as "14 years".

(2) In the case of an offence of the kind mentioned in section 55(1)(d) which is ancillary to a pre-existing E&W offence committed before 1 September 2001, nothing in section 53(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act 1967.

(3) In the case of a pre-existing NI offence committed before 1 September 2001, in section 60(6) "30 years" is to be read as "14 years".

(4) In the case of an offence of the kind mentioned in section 62(1)(d) which is ancillary to a pre-existing NI offence committed before 1 September 2001, nothing in section 60(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act (Northern Ireland) 1967.

(5) In this section—

"pre-existing E&W offence" means—

(a) an offence under section 51 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;

(b) an offence under section 51 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);

(c) an offence of a kind mentioned in section 55(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above;

"pre-existing NI offence" means—

(a) an offence under section 58 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969;

(b) an offence under section 58 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);

(c) an offence of a kind mentioned in section 62(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above."

(4) After section 67 insert—

"67A Supplemental provision about UK residents

(1) To the extent that it would not otherwise be the case, the following individuals are to be treated for the purposes of this Part as being resident in the United Kingdom—

(a) an individual who has indefinite leave to remain in the United Kingdom;

(b) any other individual who has made an application for such leave (whether or not it has been determined) and who is in the United Kingdom;

(c) an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom;

(d) an individual who has made an asylum claim, or a human rights claim, which has been granted;

(e) any other individual who has made an asylum claim or human rights claim (whether or not the claim has been determined) and who is in the United Kingdom;

(f) an individual named in an application for indefinite leave to remain, an asylum claim or a human rights claim as a dependant of the individual making the application or claim if—

(i) the application or claim has been granted, or

(ii) the named individual is in the United Kingdom (whether or not the application or claim has been determined);

(g) an individual who would be liable to removal or deportation from the United Kingdom but cannot be removed or deported because of section 6 of the Human Rights Act 1998 or for practical reasons;

(h) an individual—

(i) against whom a decision to make a deportation order under section 5(1) of the Immigration Act 1971 by virtue of section 3(5)(a) of that Act (deportation conducive to the public good) has been made,

(ii) who has appealed against the decision to make the order (whether or not the appeal has been determined), and

(iii) who is in the United Kingdom;

(i) an individual who is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 or who is liable to removal under section 10 of the Immigration and Asylum Act 1999;

(j) an individual who is detained in lawful custody in the United Kingdom.

(2) When determining for the purposes of this Part whether any other individual is resident in the United Kingdom regard is to be had to all relevant considerations including—

(a) the periods during which the individual has been or intends to be in the United Kingdom,

(b) the purposes for which the individual is, has been or intends to be in the United Kingdom,

(c) whether the individual has family or other connections to the United Kingdom and the nature of those connections, and

(d) whether the individual has an interest in residential property located in the United Kingdom.

(3) In this section—

"asylum claim" means—

(a) a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom, or

(b) a claim that the claimant would face a real risk of serious harm if removed from the United Kingdom;

"Convention rights" means the rights identified as Convention rights by section 1 of the Human Rights Act 1998;

"detained in lawful custody" means—

(a) detained in pursuance of a sentence of imprisonment, detention or custody for life or a detention and training order,

(b) remanded in or committed to custody by an order of a court,

(c) detained pursuant to an order under section 2 of the Colonial Prisoners Removal Act 1884 or a warrant under section 1 or 4A of the Repatriation of Prisoners Act 1984,

(d) detained under Part 3 of the Mental Health Act 1983 or by virtue of an order under section 5 of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14 of the Criminal Appeal Act 1968 (hospital orders, etc),

(e) detained by virtue of an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (other than an order under section 60C) or a hospital direction under section 59A of that Act, and includes detention by virtue of the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to which a person is subject by virtue of an order under section 59 of the Criminal Procedure (Scotland) Act 1995, or

(f) detained under Part 3 of the Mental Health (Northern Ireland) Order 1986 or by virtue of an order under section 11 or 13(5A) of the Criminal Appeal (Northern Ireland) Act 1980;

"human rights claim" means a claim that to remove the claimant from, or to require the claimant to leave, the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with the person's Convention rights;

"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention;

"serious harm" has the meaning given by article 15 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted;

and a reference to having leave to enter or remain in the United Kingdom is to be construed in accordance with the Immigration Act 1971.

(4) This section applies in relation to any offence under this Part (whether committed before or after the coming into force of this section).""

Amendment 66A agreed.

Further consideration on Report adjourned.