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Lord Carlile of Berriew Excerpts(7 months, 3 weeks ago)
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Baroness Penn (Con)
My Lords, the Government will update the House when we respond to that judgment.
Lord Carlile of Berriew (CB)
Does the Minister agree that the Government would be able to be much fairer to genuine refugees if they got a grip of the shortage of manpower dealing with the vast of cohort of people who are applying for asylum but will never get it, and brought to the places where those applicants live tribunals and officials who could deal with them in what might loosely be called “real time”?
Baroness Penn (Con)
My Lords, as I said in response to an earlier question, the Home Office is increasing the number of caseworkers to deal with asylum claims; it has more than doubled that over the last two years. Of course, the Illegal Migration Act will be an important part of our strategy here as it will end illegal entry as a route to asylum in the UK.
Assisted Dying Bill [HL]
Lord Carlile of Berriew Excerpts(9 years, 5 months ago)
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Lord Carlile of Berriew (LD)
My Lords, I have put my name to Amendment 2 along with the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth, and I wish to speak to Amendment 2 now. It is always a pleasure to follow the noble Lord, Lord Pannick, and I both agree profoundly and disagree profoundly with the amendments that he has just proposed. I need to explain very briefly why I agree, because he has given a very cogent argument for that aspect of the matter, and, at a little more length, why I disagree. I and the two other noble Lords who have signed Amendment 2 have also signed a number of others and I will explain why in a moment. They propose a very different judicial system from that which has just been advocated by the noble Lord, Lord Pannick.
I agree with the noble Lord that there should be a court-based system. Indeed, that is what the Supreme Court, in the case in which he appeared with distinction, appears to have advised. The judgments in the Supreme Court are not uniform, of course, and a degree of interpretation is required to distil common themes from them. But in my view there are some. I often take train journeys from Euston to the north-west or mid-Wales and as I get on the train I show my ticket to the person standing at the platform entrance. Then the train manager comes round and asks for my ticket again, and, to my intense annoyance, never asks me for my senior railcard—he takes it for granted that I have one. I am sure other noble Lords here suffer the same indignity from time to time and wish it were otherwise. In a sense, that is a metaphor for my view of what is proposed by the noble Lord, Lord Pannick. What he has proposed is not a robust, analytical, court-based, evidence-founded system of whether it is right in law for a person to be given assistance to commit suicide. The way it has been drafted gives the court the opportunity to verify whether the procedures set out in the Bill have been carried out. There is no merits-based assessment in his recipe and I reject that approach.
That said, I agree entirely with the noble Lord that the Family Division of the High Court is extremely well equipped to deal with these cases. The adjudication on the switching off of life support machines, on Jehovah’s Witnesses refusing operations that involve blood transfusions and on other similar issues was very nobly pioneered by the Family Division of the High Court, particularly under the presidency of the noble and learned Baroness, Lady Butler-Sloss, who I am delighted to see in her place. The Family Division of the High Court contains on its bench real experts on issues that cover not only the nuts and bolts, complex as they are, of family life, but also the moral, ethical and even philosophical issues that may move decisions as to whether, for example, deaths should be allowed to take place in a particular way by the switching off of a life support machine. There is no doubt that the expertise lies there.
The clue to what I and the other two noble Lords who have kindly signed my amendment wish to do is actually to be found in another amendment, which we will debate in the next group. I think it is right to draw your Lordships’ attention to the very last amendment on the Marshalled List, Amendment 175, which provides that an applicant may,
“apply to the High Court of Justice for assistance with suicide if they consider that in the absence of such assistance their rights under Schedule 1 to the Human Rights Act 1998 would be breached”.
In other words, our court-based system is an evidence-based system which would require the High Court of Justice Family Division to decide whether there had been a breach of convention rights and, in particular, the convention right under Article 3 and, as it is always spoken of in this context, the article right which covers family life, privacy and so on.
The philosophical difference between me and the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, on this is about where the real decision-making should lie. In what I am sure I can be forgiven for calling the Falconer-Pannick approach—I hope I will be forgiven for the shorthand—we have a medical model for decision-making. In my approach, with the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries, we have a court-based approach to decision-making. I much prefer the experience of the courts and the court-based approach.
My father was a general practitioner. He was born in 1904. He practised in two countries in two very different capacities, spending the last decades of his life practising as a general practitioner in Lancashire. He was a very wise and reasonable man—my mother used to say I took after her. He always used to say to me that there are some wonderful people in the medical profession, but there are some terrible rogues as well, including famous ones, such as Dr Shipman. I spent 10 years, to my father’s great delight, as a lay member of the General Medical Council, and I saw a procession of outrageously badly behaved doctors going through the GMC conduct and health committees. They were very difficult to detect. It certainly did not amuse me as it amuses one or two senior Members of your Lordships’ House sitting opposite me who really should not find this a laughing matter.
I turn to the reason why we propose what we do, for there is a rational basis to this. I turn to exactly the same points as the noble Lord, Lord Pannick. I refer to the judgments in the Supreme Court of the noble and learned Lord, Lord Neuberger, the president of the court, and Lord Wilson. As the president of the court, the noble and learned Lord, Lord Neuberger, obviously has a very important role to play and is seen to represent a view, perhaps a corporate view of the court, although it does not flow from this case necessarily. Lord Wilson, as he pointed out during his judgment, has a very important role to play because he is by experience a very senior family court judge and has widespread experience of matters relevant to this issue.
It seems to me—other noble Lords may disagree with this—that two themes emerged from the Supreme Court judgment, if one can draw themes from 130 or so pages of several judgments, which is not easy. The first theme that emerged is that their Lordships thought that there is a possibility—they did not put it much higher than that—or perhaps something between a possibility and a probability, that there may be cases in which the Suicide Act, as amended, is incompatible with the European Convention on Human Rights and that therefore there might be a case, which has not arisen as yet, in which there might be what is called a declaration of incompatibility between existing United Kingdom statutory law and the European Convention on Human Rights. I am going to leave out of all today’s discussions that I raise any question about whether we should still have the European Convention on Human Rights because I think all reasonable people agree that if we did not have the European convention, we would have a convention with at least the same rights in it, so I park that point and hope that we do not have to return to it later.
Lord Wilson said that Parliament might consider setting up a situation in which the Family Division of the High Court would consider a large number of matters upon which evidence would be required to satisfy the court that there would indeed be a breach of convention rights justifying a declaration of incompatibility. My view is that declarations of incompatibility between European convention law and UK statutory law are extremely undesirable because they stir up the sort of political argument which I adverted to briefly a moment ago about whether we should have the convention at all. Lord Wilson said in paragraph 205 of his judgment that,
“Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a person’s wish to commit suicide was … voluntary, clear, settled and informed”.
He then set out in his list a to r—a long list—factors which the court might wish to investigate before deciding whether it could be so satisfied.
My Amendment 2, and all my other amendments on the judicial model, which we will be debating later, seek to provide exactly what Lord Wilson had in mind. I shall not go through the list from a to r because I do not want to take up undue time in your Lordships’ House as we have plenty to debate, although I would strongly recommend to your Lordships that nobody should speak on this issue without being able to put their hand on their heart and say that they have read Lord Wilson’s judgment, or at least paragraph 205. However, it includes, for example, the nature of the individual’s illness, physical incapacity or other physical condition; the aetiology of the condition; the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; the motive of the person proposing to give assistance; and any financial recompense or other benefit likely to be received by such person in return for or in consequence of the proposed assistance. Those are just five of the factors in the a to r list which he set out.
What I propose to your Lordships—in my view this is something that should have been taken up by the noble and learned Lord, Lord Falconer, in redrafting his Bill, as I believe he should have done, to a court-based model—is intended to provide—I do not speak for perfection in drafting—a complete court-based model in which the merits could be considered by a court in a proper way, just as it is done in other cases now. I believe that a system of this sort—contrary to the views which I conscientiously hold, by the way—might allow some cases of assisted suicide in those cases where it was shown beyond reasonable doubt that there was a breach of the relevant articles of the European convention.
Lord Framlingham (Con)
My Lords, I am not a lawyer, but I want to get something quite clear. Is all this happening while the family and the patient are wondering what is going to happen? Just how long is it likely to take?
Lord Carlile of Berriew
That is a very good question and I am very happy to answer it. Those who have studied these cases as they go through the Family Division know that it is capable of dealing with them very quickly indeed, according to the needs of the case. I believe that these cases would be given sufficient priority for them to be dealt with within a reasonable time—by which I mean days rather than months if necessary. There is really no difference between me and the noble Lord, Lord Pannick, on this subject because we both require the cases to go before the courts.
I should like to complete this because I have taken nearly a quarter of an hour and I do not want to take more than that—[Interruption.] This House must not seek to stifle debate on serious issues.
Lord Carlile of Berriew
I have in mind the words of the Companion. I say to any noble Lord who is intending to make this less than the sort of the debate we would hope for in this House that we will, if necessary, have a full discussion on all the issues. Please bear with me for another minute and a half or so.
I hope that the noble and learned Lord, Lord Falconer, will take back and consider in due course what is proposed in Amendment 2 as I do not wish to force the House to decide on these issues today. What is proposed is the sort of court-based model which could make the United Kingdom an exemplar to the world of how we have a judicial system that is flexible enough to take in cases at the extremes but sustains the principles in which it has long believed.
Baroness Tonge (Ind LD)
I thank the noble Lord for giving way. I would just like to ask a very simple question, because I am ignorant of these matters. How much would this cost for a dying patient who desperately wants to end his suffering surrounded by his family, and would he get legal aid?
Lord Carlile of Berriew
I am grateful to my noble friend. I believe that legal aid would be available if necessary under the exceptionality provisions. When I was asked this question yesterday, I reflected on the cost of the recent funeral of my own mother. I anticipate that these costs would potentially be about the same as for a funeral. We are talking about life and death here. My noble friend is a distinguished member of the medical profession. We are talking about taking a huge constitutional step which would allow a medical practitioner to participate in the killing of another human being, deliberately bringing about their death. This is very different from the doctrine of double effect, about which the noble Baroness, Lady Finlay, and other noble Lords have spoken on numerous occasions in your Lordships’ House. I do not regard the cost issue of life and death as being very significant in this context.
In conclusion, I hope that I have made the basic—
Lord Carlile of Berriew
When I have finished my sentence, I will give way. I hope that I have made the basic reasons clear. Now that I have finished my sentence, I will delay sitting down in order to respond to the noble Lord opposite.
Lord Warner
I am extremely grateful to the noble Lord. Does he accept that, under the amendment in the name of the noble Lord, Lord Pannick, the family court would have to have regard to the Human Rights Act in forming its judgment?
Lord Carlile of Berriew
I accept that the family court would have to have regard to the considerations which are set out in the amendment of the noble Lord, Lord Pannick. The difference between that amendment and ours is that ours sets out a very clear way in which the convention issues would have to be considered by the court rather than what amounts to verifying that a process has been followed. On the one hand, we have a process-driven amendment; on the other, we have a legal framework. I will happily give way to the noble Baroness.
Baroness Farrington of Ribbleton (Lab)
My Lords, I cannot speak for anyone else on these Benches. I smiled while the noble Lord was speaking because, when he was referring to the fact that there are occasionally rogue doctors, it occurred to me that rogue lawyers have occasionally been known, too.
Lord Carlile of Berriew
First, I would say that, when I see the noble Baroness smile, I always assume that she is smiling at me rather than at anything I am saying. She is known in this House for her ineffable charm and courtesy.
Lord Carlile of Berriew
Secondly, the noble Baroness has reminded me of something which I intended to say, did not say and therefore will say now. Yes, there are rogues in the medical profession and there are most certainly rogues in the legal profession and in politics. What we are talking about under this Bill is a model that relies, unacceptably in my view, on the medical profession.
Baroness Williams of Trafford (Con)
My Lords, before we continue, may I refer noble Lords to the Companion, which suggests that, in debates where there are no formal time limits, contributions are kept to 15 minutes?
Lord Pannick
I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,
“a voluntary, clear, settled and informed”,
decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.
Lord Carlile of Berriew
Does the noble Lord not think on reflection that Report stage on a Bill of this kind is an extremely important stage for your Lordships’ House? Does he not think that it would be far better for your Lordships to discuss and reflect so that when we come to Report we are able to make a considered decision in which even those of us who feel strongly about these issues will understand the essential need to be prepared to compromise, through a proper discussion reflective on the debate of the past two hours? In that context, I am certainly not going to vote on any of these amendments either way. I invite the noble Lord to reflect for one moment on what has just been said. I think that others may well agree.
Lord Pannick
Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.
Lord Carlile of Berriew
My Lords, we come to a group of amendments, starting with Amendment 3, which stand in my name and those of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Darzi, and, I am pleased to say, in one case, the noble and gallant Lord, Lord Stirrup. I am grateful to him for putting his name to that amendment.
I am gratified that we have had a serious and detailed debate on court intervention. I applaud the noble and learned Lord, Lord Falconer—
Baroness Jolly (LD)
My Lords, please could those leaving the Chamber do so quietly, as we have moved on to the second group.
Lord Carlile of Berriew
My Lords, I was about to say that I applaud the way in which the noble and learned Lord, Lord Falconer, accepted something that was not in his Bill and which, in my view, should have been: court intervention. That is an important principle. I agree with the noble Lord, Lord Pannick, whose amendment has just been carried, that it would not be right to say that we have not had a proper debate on the previous group of amendments. I make no complaint about that. However, I make clear that if there is a Report stage of the Bill, there will be further detailed debate on the issues we have discussed and those in this group, to which I will turn in a moment.
I just wanted to pick up on three remarks made in the excellent previous debate. One was made by the very distinguished lawyer, whom I admire greatly, the noble Baroness, Lady Mallalieu—which I suppose is an inevitable preface to disagreeing with her—when she referred to a legalistic obstacle course. The noble Lord, Lord Campbell-Savours, referred to congestion in the system, and the noble Baroness, Lady Murphy, who I see has left her place, said that my proposals were unworkable. I reject all those concerns. Indeed, I and those who have put our names to the amendments have sought to provide a very straightforward road map. It may at the moment look a bit like a menu, but this is a House of Parliament and your Lordships are Members of a debating Chamber. Like any other noble Lord, I hope, I accept that parts of what looks like a menu may be accepted and others rejected in due course. I respectfully submit that the amendments are worthy of consideration.
Briefly, I refer your Lordships to the rationale of each amendment, other than Amendment 3, which speaks for itself. Amendment 64 requires the court to be satisfied beyond reasonable doubt of certain things. Why “beyond reasonable doubt”, given that these are civil, not criminal proceedings? I have spent—I wrote on a piece of paper last week that I had spent 42 years at the Bar, but I had to consider afresh and added another two years as I was writing the piece I was preparing—44 years at the Bar and, throughout that period, I have dealt mostly with criminal cases in which there has been an assertion that death has been caused unlawfully. It always has to be proved beyond reasonable doubt so that the court is sure, as judges say to juries in murder cases. It is a straightforward proposition that, if Parliament is to allow one human being deliberately—not through double effect, of which the noble Baroness, Lady Finlay, spoke so eloquently earlier—to take the life of another human being, the standard should be “beyond reasonable doubt”.
Secondly, Amendment 64 requires the court to be sure that there would be breaches of Articles 3 and 8 of the convention. I mean by that that the court should be sure that the person concerned would be suffering from inhumane and degrading treatment by not being allowed to have their life taken with the assistance of another, and that there would be, to use shorthand for time’s sake, a breach of their right to privacy and family life.
Further, in Amendment 64, I suggest to your Lordships that it is important that the rights of others should be considered if they are affected by the applicant’s potential suicide. By that, I refer to wives and husbands, children and grandchildren, carers and other people who feel on strong grounds that the applicant is taking the decision—albeit with capacity—on an entirely mistaken basis that does not amount to breaches of Articles 3 and 8 of the European Convention on Human Rights. It seems to me common sense that they should be heard.
Finally, I suggest that the court may, in its discretion—please note that those words mean exactly what they say—allow other persons in addition to the applicant to be heard. In that context, we are aware, because the noble Lord, Lord Pannick, told us about it, that in the Nicklinson case the noble Lord appeared on behalf of an interested party—no doubt to enormous value, as one can see from the judgments in the case. It seems to me right that the court should retain the discretion, which might be useful in very early cases, to permit such interventions.
I turn to Amendment 67, which sets out part of the road map by which the Family Division would decide these cases. In personal injury cases and indeed in some others, the court is free to appoint an independent medical expert to assist the court. What that expert can do, if he or she is a good expert, is to look at the medical evidence produced by the parties, draw its threads together, discuss the medical evidence with other experts—it can be done at high speed—and present an independent medical view to the court. It is of course not the independent expert who decides; it is the judge and the court that decide. But I believe, and I have seen this happen in personal injury cases on one or two occasions, that such independent experts add considerable value, particularly if they put their report into writing. That does not mean necessarily that there has to be a dissertation. What I mean by writing is that there has to be a written record of the doctor’s view, which is always available to others.
Lord Davies of Stamford (Lab)
I am grateful to the noble Lord for giving way. How long does he think that the whole of this process would take? What is the minimum amount of time that realistically would be involved if an independent report were required in writing? Does he not recognise that we are going to be dealing here largely with people who are suffering extreme pain or other discomfort and who would really wish to reduce the time to an absolute minimum when they have to continue to suffer that kind of condition?
Lord Carlile of Berriew
I do not know whether the noble Lord was here during the last debate—I apologise if he was—but I thought that that question was answered clearly. These things can be done very quickly indeed. Some of the answers could possibly be given in less time than it took the noble Lord to ask the question that he just asked.
Also in Amendment 67, a simple system is provided which involves the intervention of another independent person about how the act of assisted suicide would take place. That seems to be a straightforward safeguard.
Lord Richard (Lab)
If the noble Lord will allow me, why does he make the provision of an independent medical examiner mandatory and not discretionary? In the word that he uses, the court “shall”; it is not that the court “may”.
Lord Carlile of Berriew
I am grateful to the noble Lord, who has great experience in law, for asking that question. It is one that I considered carefully. It seems to me that in cases where one human being is having their life ended deliberately by another, the court should have the safeguard in all cases of an independent expert, albeit that that expert may in the end be able to deal with the matter briefly.
Amendments 67 and 68 also deal with the way in which the assisted suicide, if it takes place, is to take place. It seems a wise, safe course that the independent person who oversees any act of assisted suicide should submit a report to the chief coroner. I think that it is the view of most lawyers, at least, that the chief coroner—currently, his honour Judge Peter Thornton—is doing an absolutely superb job and has shown how the coronial system can be made to work much better than it ever did in the past, so that seems to be a reasonable provision.
I turn finally to Amendment 172, because I referred to Amendment 175 briefly in the earlier debate. Amendment 172 provides for a form of declaration which in my respectful view should go with every one of these decisions, if they are to be made, and which will stand as a record of what occurred not only for the court but as an explanation to the individual’s family and descendants as to why he or she decided to act as they did.
Those are the very brief reasons why these amendments, in my respectful submission to your Lordships, have merit. Despite the passing of the earlier amendment in the name of the noble Lord, Lord Pannick, these are issues that remain for consideration. I repeat that I do not propose any votes in this House on any of these issues today. These are serious matters which require debate and then reflection. I reserve the position as to what would happen on Report.
Baroness Finlay of Llandaff
My Lords, I stated earlier that I saw merit in the amendments tabled by the noble Lord, Lord Carlile, because they took doctors out of the gatekeeping role. I would like to expand on that briefly now.
The advantage of an independent medical expert is that you will know that you have somebody who has been properly trained, whose assessments are audited and, where there is monitoring in the process, that they have to be updated in that area and discipline—and that they carry credentials, as well as being able to negotiate the court process. As part of that assessment, it seems essential that others affected by the death are also considered in the process—in particular, children. I have spoken before in this House about the problems for children who are bereaved. I do not think that the House should underestimate the emotional problems for a child whose parent has committed suicide or had an assisted suicide, or the difficulties that they may go on to feel: that their love was inadequate to support the person whom they loved—their parent—through the last days, weeks or months of their life, and how damaging that can be for the rest of their lives.
I also strongly support the concept of having a court-appointed person who could take the drugs out to the person who has gone through the process and for whom assisted suicide is being agreed. The way that the Bill of the noble and learned Lord, Lord Falconer, is written at the moment is completely impractical because in reality not all patients die rapidly on ingesting their drugs. Some die within minutes but the median time is actually 25 minutes, if we base it on the Oregon experience. However, some take 41 hours to die. That is going to tie people up for a very long time.
We are talking not about therapeutic drugs but about a massive overdose of a drug at a fixed point. Later we will come on to debate lethal drugs and the difference between those and medication. There can also be monitoring of whom the drugs go to when they go out, and the return of drugs to a central point if they have not been used—as well as having someone who is trained to deal with the complications that occur, which has not been addressed and which, I respectfully point out to the House, almost no doctors are equipped to cope with at the moment. Yes, they may learn, but that would be at the expense of patients.
The other reason why I see the merit of having a completely independent process of assessment is, as I said before, that it does not contaminate the care that is being given to the person by the clinicians. It allows conversations to go on without the patient feeling that they have locked themselves in—that in a way they can pursue a parallel track. They can be assessed by the court but they can still have their own practitioner working to improve their quality of life, not believing that, now they are applying to fix a date for their death, some of the interventions feel pointless and futile.
Lord Carlile of Berriew
The intention is to reduce the period. That does appear in other amendments.
Lord Stirrup
My Lords, my name is attached to Amendment 67. At Second Reading I made it clear that my principal concern with the Bill was the way in which it affected the medical profession. The medical profession is essentially about saving, protecting and enhancing life. It is true that doctors can make decisions to withhold or withdraw artificial support for life. It is also clear, as has been said today, that they make decisions that will result in death; for example, choosing between a mother and child on occasion, or between Siamese twins. However, the intent—the driving purpose—is always to save and protect life.
In the Bill, the medical profession will be called on to cross a distinct line. It is invited to participate in the active termination of someone’s life—to participate in killing them. That is a very serious line to cross. Once it is crossed, as I said at Second Reading, there is no easily defensible position behind it. No one knows when the retreat will end.
This amendment does not allay that concern; indeed, I am not sure that any possible amendment to the Bill would address that concern completely. However, it does at least ease it to a degree. The crucial point is to remove the medical profession from the decision-making part of the process. Of course it has to be involved, and of course you need medical opinion. However, doctors are called on in the Bill to decide things that are, frankly, not even within their competence. Whether they are in the competence of anybody, including lawyers, is a matter for debate, but it is better that they should be removed from the medical profession.
The medical profession is of course called on to make a prognosis. My son is a cardiologist and has made it clear to me that, although he is called upon to make prognoses and does so, they are guesses. They are educated guesses—I have to say that they are very expensively educated guesses—but they are nevertheless guesses. They turn out to be right sometimes; they turn out to be wrong quite often—far more often than the medical profession would wish. It is an entirely different matter for a doctor to say to a High Court judge, “In my opinion, the most likely outcome in this case is X, but of course it could be Y or Z”, and for the court, on the basis of that expert opinion and all the other evidence that it has sought and assembled, to reach a comprehensive judgment. However, to ask doctors to do that is to put too great a burden on the shoulders of those who are already heavily burdened.
One of the concerns about this whole process is getting doctors to be involved in it in the first place. We know that a great many people in the medical profession are very concerned about the Bill, and would be unwilling to participate in the process. It might just be that if we are able to come up with some better decision-making process such as the one that has been outlined in the various amendments put forward by the noble Lord, Lord Carlile, we might get more of the medical profession engaged than would otherwise be the case. Surely, for those who are proposing the Bill that would be a good thing. Therefore, for those reasons, I support the amendment in the name of the noble Lord, Lord Carlile, including Amendment 67, to which I have put my name.
Lord Hunt of Kings Heath
My Lords, perhaps I may ask the noble Lord, Lord Carlile, a couple of questions. On his Amendment 67 and the question of independent medical experts, I think that it is right to say that in our first debate we reached a pretty satisfactory conclusion on the capacity of the courts to deal with these issues if the Bill was enacted. However, the noble Lord will know that sometimes the availability of medical experts can be problematic and I wonder whether he has given some thought to the issue of their availability.
The second question is about the connection between that amendment and Amendment 68, which provides that each report that was submitted to the court by the medical expert would be submitted also to the chief coroner, who would determine whether an inquest should be held into the death of the applicant. Could the noble Lord clarify the purpose of that amendment? Is it intended in effect that the chief coroner is almost put in a position of second-guessing the original decision of the court or the advice of the medical examiner? It would be helpful if he could clarify a little more his purpose.
Lord Carlile of Berriew
I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.
Lord Faulks
This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.
Lord Falconer of Thoroton
I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.
In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.
Lord Carlile of Berriew
My Lords, first, I am grateful to all noble Lords who have participated in what I think has been a high-quality debate lasting something like 1 hour and 20 minutes—a debate that I suspect almost everybody in the House would agree has not been marked with any frivolity whatever.
I reject what the noble and learned Lord just said. I am not proposing that the court should make a judgment of the quality of the person’s life. That is a caricature of what I am suggesting. I, and those who support these amendments, suggest that there should be an assessment of the quality of the decision that is made by the individual, which is quite different. Yes, it should be at a high bar. We deliberately set the bar high and we do so on conscientious and ethical grounds. Of course, I acknowledge that the noble and learned Lord, too, has conscientious and ethical grounds for his viewpoint.
Those of us who lie in the bath or climb out of the shower at 7.45 in the morning are fortunate to hear the wise vignettes of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Singh. We get our bonuses in this House, as we have enjoyed moments of real wisdom from both of them this afternoon, as we do fairly regularly on Radio 4. I am grateful to the noble Lords, Lord Empey and Lord Alton, for highlighting the issue about introducing some independence into this decision-making process.
Indeed, I have in my hand a press release issued yesterday by the senior public affairs adviser, David Knowles, acting on behalf of the British Medical Association, of which the noble Baroness, Lady Finlay, is president. As I understand it, the BMA represents all doctors in one form or another. It states:
“Legalised assisted dying could have a profound and detrimental effect on the doctor-patient relationship, even where doctors’ involvement is limited to assessment, verification, or prescribing”.
That was only one of its grounds. The noble Lords, Lord Empey and Lord Alton, answered that point. The noble and gallant Lord, Lord Stirrup, added to that observation by saying that, if we were to introduce the amendments, we might get the medical profession to participate in the process, rather than being opposed to it. In our reflections before we may have to vote at Report stage, if there is one, that point should be taken into account.
“(2) Subsection (1) only applies where the person—
(a) has capacity commensurate with a decision to end his or her own life and has a clear, settled and voluntary intention to end his or her own life;(b) has made a written declaration to that effect in the form of the Schedule before two independent witnesses, one of whom must be a solicitor in practice; and(c) on the day the declaration is made—(i) is aged 18 or over; and(ii) has been ordinarily resident in England and Wales for not less than one year immediately prior to making the declaration at paragraph (b).”
Lord Carlile of Berriew
My Lords, in speaking to this group of amendments, I propose to short-circuit a number of them and draw the Committee’s particular attention to Amendment 65, which stands in my name and in the names of the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth.
This is about capacity. There is an awful lot on the Marshalled List today relating to capacity. There is hardly a Member of your Lordships’ House with an interest in the Bill who has not had a stab at producing a good capacity provision. We have proposed this capacity provision because we do not believe that Clause 3 goes anything like far enough. There are two particular aspects of Amendment 65 which go further than Clause 3 and which, I suggest to your Lordships, would provide significant reassurance. I would be really disappointed if we were brushed off, in the way in which we have been, in relation to these amendments and in respect of the two particular matters.
I draw your Lordships’ attention to paragraphs (a) and (d) of the proposed new clause in Amendment 65. In defining capacity, we talk about a,
“capacity commensurate with a decision to end his or her own life”,
thereby highlighting the importance of the decision. In paragraph (a), we then suggest that it should be required that it should be proved that a person,
“is not suffering from any impairment of, or disturbance in, the functioning of the mind or brain”,
then come the additional words,
“or from any condition which might cloud or impair his or her judgement”.
For those of us who have taken an interest in mental illness over, in some of our cases, decades and studied the subject in detail, there is a real concern that if those words or something like them are not included then people may determine that their own lives should be ended as a result of a mental condition of a permanent nature, which is easily defined as such, or by a temporary medical condition.
I am an absolute rank amateur in that I think I know a bit about mental health but it is as a layperson. I know that there are people in this House—I can see at least one present—who have a great deal of expert knowledge and are internationally admired for their knowledge about mental health. Of course I defer, as the House quite rightly deferred earlier to the noble Baroness, Lady Finlay, on palliative medicine, to any such views on the precise diagnostic criteria. What is known—it is certainly known to lawyers because we have had to deal with this all the time during our careers—is that there are manuals of diagnostic criteria. One which I am accustomed to is an international document, ICD-10, which contains the details of many different mental conditions. Among those volumes there are mental conditions which could cloud or impair a person’s genuine judgment, making it a judgment that was led by that mental condition and not by a person’s general state. When mental illness occurs in a family—there will be people in this House who have had this experience—it can be very frustrating for the rest of the family because they know that the individual in question is not exercising an objective or genuine judgment but, worse still, not exercising what is in reality their own normal, rational judgment, which when they are not suffering they possess. That is the purpose of paragraph (a).
Paragraph (d) requires it to be shown that the person,
“is not the subject of influence by”—
that is in the Bill—
“or a sense of obligation or duty to, others”.
Almost all those of us who have been fortunate enough to have our parents survive to a very great age will have heard that parent saying, “Oh, I shouldn’t be doing this to you because there’ll be less for you at the end”, or, “I’m causing you immense trouble because you have to come 200 miles across the country when I have a small crisis”, or, “You’re paying people to look after me”, and so on. We all know these scenarios; they are extremely common. They happen all the time, sometimes even in the best regulated families. Those are situations in which not all, but some, feel a sense of obligation or duty to die—“You’d be better off without me”. In my view, it is a matter of simple ethics—if ethics are ever simple—that we should not be willing to countenance any person choosing to end their own life because they feel that that is going to benefit others.
Baroness Warnock (CB)
My Lords, why is it thought wrong for someone to ask to die out of a sense of duty or a wish not to continue in a condition that is intolerable—the condition of being disruptive, indeed often destructive, to the well-being of their own family? All the way through their life until this point, putting their family first will have been counted a virtue, and then suddenly, when they most want to avoid the trouble, bother, sorrow and misery of disruption to their family, they are told they are not allowed to follow that motive. I simply find this extraordinarily puzzling and I would like the noble Lord to explain it to me.
Lord Carlile of Berriew
People with much less strength of character than the noble Baroness, who is known for her views and her enormous strength of character, are at risk of those feelings being adopted, condoned and co-opted by their family. Those of us who have practised law for many years have come across such cases. Indeed, there will be people who have observed it in the lives of friends and family. It is our view that a sense of obligation—“It would be better for my children if I were carried away”—is not a sufficient basis for allowing an individual to do what is anticipated by the Bill, which is deliberately to end the life of another person.
Lord Alton of Liverpool
My Lords, I am grateful to the noble Lord for giving way.
Lord Ashton of Hyde (Con)
My Lords, I think it is usual not to intervene before the noble Lord has moved the amendment.
Lord Carlile of Berriew
I believe that I moved the amendment right at the beginning of my speech, so I am very happy to give way to the noble Lord, Lord Alton.
Lord Alton of Liverpool
I am grateful to the noble Lord. I was aware that he had moved the amendment. On the point about the pressure that can be placed on people to take decisions that they might involuntarily be asked to take, does he agree that the “right to die”, as it is sometimes described, can easily morph into a duty to die? I understand the point made by my noble friend Lady Warnock. However, I recall that in 2008 she made the point that you can become a burden to the National Health Service if you have something such as dementia and then you can become a burden to society. I am personally disturbed by the idea that we place on people’s shoulders the idea that somehow they are a burden not just to their families but to the rest of us as well.
Lord Carlile of Berriew
I agree with the noble Lord. Indeed, there is a very slippery slope from saying, “I feel an obligation to my family or the NHS” to it being said, “Well, we have to deal with people who are an obligation to their family or the NHS”. The safety that this provision would introduce into the system is, in my view, very important.
Lord Beecham
Before the noble Lord sits down, for the third time he has referred to a person ending the life of another person. Will he concede that that is not a description of what the Bill sets out to permit?
Lord Carlile of Berriew
I do not concede that for one moment. The purpose of the Bill is for a person to be put in the position of facilitating the death of another person in circumstances in which that death would not otherwise occur. It seems to me to be a distinction completely without a difference. Indeed, if one were to analyse it as a matter of criminal law, there is no difference. I beg to move.
Queen’s Speech
Lord Carlile of Berriew Excerpts(9 years, 10 months ago)
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Lord Carlile of Berriew (LD)
My Lords, the European Union does not help itself by issuing pettifogging regulations on the roundness of oranges or the shape of tomatoes, nor by its burgeoning bureaucracy. For the future, its leadership must mirror its membership. It is not acceptable in the present economic climate—at least in mainland Europe—that the President of the Commission should be without direct experience of a complex, mixed economy. But whoever the leaders of Europe are, they must be sensitive to the recent rise of nationalism, racism and other prejudice.
My sister Renata Calverley’s book, Let Me Tell You a Story, published last year, is her searing recollection of her extraordinary survival as a two to seven year-old child fugitive, hiding from the Nazis in Poland day by day and just about surviving. Families such as ours were more than decimated by the Second World War—by prejudice, totalitarianism and nationalism. However, unlike my sister, I was born after the Second World War, and I have never had to do military service in any form, save as a less than distinguished army cadet at school. I have had over 65 peaceful years—and why is that? It is because—and we should remember this as central to the reasons for having the European Union—the United Kingdom, Germany, France, the Netherlands and now Poland, the country we let down the most in the 1930s, and other countries, are part of the same political organisation. We share and solve issues together and confront nationalism and prejudice. Those are the vials that contain the precious essence of our past and future security. As the noble Lord, Lord Hannay, said earlier, of course we should reform the European Union on its merits. However, we abandon the European Union at our peril and at the risk of European peace and security.
I turn to Iran and Iraq—the register refers to my interests in this connection. Iran has committed more human rights violations this year than ever before. President Rouhani and the theocratic mullahs he serves routinely execute—in public and usually from cranes—people who do no more than I am about to do now: question my own Government’s policy. The mullahs exert sinister and sometimes dominant influence on the disastrously falling Government of Iraq; we read today of terrorists marching towards Baghdad. That has led to the abandonment of any pretence of protection in Iraq for the Iranian opposition resident in Camp Liberty. Murder and deprivation are now regularly imposed upon Camp Liberty, and the state of Iran is behind it.
My point for the Minister is that it is unprincipled and unwise to decouple human rights from nuclear issues in talks with Iran. Iran is a rogue state—we should not forget that. Rouhani is no Gorbachev, though there are some world leaders who appear to believe that he is. Without a clear demonstration of change in their approach to political and religious freedoms, those who rule Iran must not be trusted in any other sphere, including the nuclear. As I said earlier, we abandon Europe at our peril, but in relation to Iran and Iraq we abandon principle at the price of innocent lives.
Financial Services Bill
Lord Carlile of Berriew Excerpts(11 years, 10 months ago)
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Lord Eatwell
I certainly think that Mr Tyrie and the Treasury Committee can and will pursue their activities in their normal way, including perhaps the pursuit of this particular inquiry. As to the future policy of the Opposition on the organisation of that inquiry, we are trying to achieve the best possible outcome. I see the best possible outcome as a three-dimensional one.
Lord Carlile of Berriew
My Lords, I welcome the opportunity for this short debate on a matter of great public interest. I have to say to the noble Lord on the opposition Front Bench that the Opposition have asked the right question but given the wrong answer to that question. The LIBOR issue is an immense financial scandal. It appears to have not just the scope of one bank, but possibly to affect other financial institutions. It affects not only what has happened in the United Kingdom, but affects at least four jurisdictions, including the United States of America. It affects the reputation of the City of London in a major way. Those of us who are as old as I am remember bankers in the City of London by the adage, “My word is my bond”. Now we see, “My Maserati is my success”, as the evidence of what happens in the City of London. I hope that noble Lords of all parties and none will agree that, as a result of this scandal, we need to emerge from it with “my word” being “my bond” once again. The trust in the City of London is why the City of London succeeded in the past. It will not succeed in the future if those who do business there, if I may use a Scouse expression, are seen merely to be “wide loads”.
What has happened undoubtedly potentially merits investigation for criminality. I do not believe that a parliamentary inquiry is the right way to winkle out criminality, welcome though a parliamentary inquiry is. It is not a way in which criminal investigations are carried out. In fact, it is a ludicrous proposition to suggest that this is the job of a parliamentary committee, however well led. I do not for one moment question the leadership and integrity of Mr Tyrie. He is obviously very good at what he does. I do not favour a judicial inquiry, because a judicial inquiry can quickly become a behemoth. I do not draw a comparison with the Leveson inquiry. Lord Justice Leveson is not merely an old friend; he is doing a brilliant job with a very specific inquiry of an entirely different kind. However, I fear that if a judicial inquiry were established, within a few days we would see some of the best lawyers in London—including some Members of your Lordships’ House—earning vast sums of money from lining up in front of a senior judge, expecting an outcome at some distant time, possibly in this decade, possibly not.
Lord Howard of Lympne
Could not the investigation that my noble friend asks for be carried out without the appointment of a special prosecutor but by the Serious Fraud Office, which has already embarked on such an investigation, with the director, if necessary, asking for additional resources to enable him to bring such an investigation to a speedy conclusion?
Lord Carlile of Berriew
I am grateful to my noble friend, who has considerable experience of dealing with high-level legal matters. I believe that might be achieved, but in my view there needs to be the clearest statement of intent by the Government. My intention, as my noble friend implies, is that whoever carries out this special investigation should be invested with the powers of the Serious Fraud Office, which are considerable and important. That is why I suggested earlier that this should take place under the instructions of the director of the Serious Fraud Office, Mr David Green QC. However, I believe that the Serious Fraud Office is completely unresourced for this kind of investigation. I also believe that in public terms, if the Government made it clear that they would provide Mr Green with the resources immediately to appoint a special prosecutor, albeit under his umbrella, and that person was provided with a team, probably largely from outside the SFO, which has been recruiting a large number of staff recently and may not have the experience to deal with this inquiry at present, then we would have a quicker and better result.
I do not want to detain your Lordships’ House for too long. However, I want to make the point that we have not yet reached the situation in which the essential issue is being investigated properly—that is, the potential criminality of those whom we were entitled to trust.
Lord Phillips of Sudbury
My Lords, I came to the City as a young lawyer in 1964 and am still there. Until last Christmas, I was a non-executive director of a well known City insurance entity. I agree wholly with the sentiments of the noble Lord, Lord Eatwell. However, the writing has been on the wall about the state of values in the City for very many years. The most recent shock—the LIBOR scandal as one might call it—is but one of many and there will be many more still to come, I am sad to say. It has been an open secret in the City that the culture has declined over the years to one of near amorality, where the law rather than normal moral instincts has been the arbiter of conduct. That in turn has declined, predictably, to a situation where too often if amorality is confronted with a significant loss of a good deal then there is little resistance left in the system and criminality occurs. Most of it is impossible to trace as it is in the form of market manipulation and oral conspiracies—whether within a firm or between different firms. It is a sad spectacle. To be fair, the vast majority of people in the City deeply regret where we have got to. Unfortunately, however, the culture of huge corporations tends to crush the moral life out of people in those entities. You get the occasional whistleblower who will stand out against the herd but one knows, I am afraid, what has happened recently to those few brave people.
The noble Lord, Lord Eatwell, is absolutely correct in his strategic overview of where we now are. We must, however, ponder this a little more than the space of this debate will allow. I am inclined towards giving serious thought to some sort of commission. It does not have to be a royal commission—a phrase which has attracted a good deal of adverse thought lately—but it is such a huge congregation of issues, not just confined to the City and certainly not confined to narrow misdeeds such as the LIBOR matter, that we may be better off with a royal commission that can look at the thing in the round, take its time, and let the criminal side of all this be separated and dealt with by the Serious Fraud Office or, conceivably, a special prosecutor.
My Amendment 109—to which my noble friend Lady Kramer and the noble Baroness, Lady Meacher, have added their names, and which we will probably get to next time—ironically achieves almost the identical effect to that of the first part of Amendment 110ZA, tabled by the noble Lord, Lord Eatwell, so I am obviously in favour of that.
In closing, the other quick point I should like to make is to wonder whether there should not be a wider duty of integrity in the Bill than that which applies only to the FCA in proposed new Section 1D on page 17 of the Bill. The prudential authority should be subject to a similar integrity objective, and it might make sense to have such an objective for the whole financial regulatory sphere. That is all I wish to say beyond thanking the noble Lord, Lord Eatwell, for raising this matter at this time.
Lord Sassoon
My Lords, first, let us be clear that these amendments have very little to do with the Bill before us today. They are all about the Opposition’s misguided attempts to slow down what we need to do to deal with the consequences of the LIBOR scandal. We need rapidly to restore public confidence in the financial services industry, which the Government are pressing on with. We do not need to kick these very serious matters into the long grass, as the Opposition now propose. It is time for Parliament, as well as the Government, to take clear leadership on these matters. The events of recent days have highlighted that the culture of banking is badly broken. The Government are in the process of fixing the system, but we need to change the mindset of the profession and those working in it. This is about restoring banking to what it should be about: to be the most, and not the least, trusted profession.
The basic facts of the attempted LIBOR manipulation are clear. There have already been published reports from three regulators in the UK and the US. We do not need a judicial inquiry to tell us what the facts are. A judicial inquiry would be principally aimed at establishing the facts; it would likely take years to complete, might not be able to start until after prosecutions had been completed and would cost the taxpayer millions of pounds.
Now we need three things. First, we need the rapid prosecution of individuals who may have broken the criminal law. This is what the SFO and the Crown Office in Scotland are looking to do. Secondly, we need to look at how LIBOR cannot be fixed again, which is the subject of Martin Wheatley’s review. Thirdly, we need to look into the ethical and professional standards of the financial services industry and we need to do so urgently to ensure that the banking industry is serving the needs of the wider UK economy and the continued global competitiveness of London and the UK.
For this reason, the Government recommend that Parliament considers undertaking an urgent inquiry into the culture and ethics of the banking industry to help shape the urgent reform that is so much needed. The Government propose the establishment of a full parliamentary committee of inquiry, comprised of representatives from both Houses, and set up by a joint resolution of both Houses. The proposed terms of reference for the committee are building on the Treasury Select Committee’s work and drawing on the conclusions of UK and international regulatory and competition investigations into the LIBOR rate-setting process, consider what lessons are to be learnt in relation to transparency, conflicts of interest and the culture and professional standards of the, financial services industry, including the interaction of these with civil sanctions and criminal law. While I hear noble Lords seeking to paint this as a narrow inquiry, on any construction, these words will give the Joint Committee a very wide remit.
I am also glad that the Opposition now seem to support the creation of this committee. I have laid out what is required. We certainly do not require a proliferation and duplication of reviews that could go on for several years. We recommend that the inquiry should commence immediately and conclude by Christmas. As noble Lords are aware, the Government plan to introduce the banking Bill that will implement the recommendations of Sir John Vickers’s Independent Commission on Banking in January next year. This will bring far-reaching and lasting changes to the structure of British banks. The Government’s preferred timetable for the committee of inquiry would allow the Government to use the Bill to make any appropriate further changes needed to the standards of the banking industry and the criminal and civil powers needed to regulate it, and hold people to account for their behaviour.
The Joint Committee will do its work well and comprehensively and will report by Christmas. However, if, at that stage, this House or another place was not satisfied with the work of the Joint Committee, it will be possible for Parliament to press for a further inquiry. At that time, the inquiry proposed by this amendment would not even have started. The Government fully intend that Parliament should play a significant role in getting to the bottom of what happened and helping make the system more robust. It is surely highly desirable and consistent with many of our previous discussions in recent months that your Lordships’ House should be fully engaged in the process, bringing the full breadth of its expertise to bear from Peers of all the main parties and none.
This is already a big Bill, on which time is now being taken up by debating the merits of an inquiry—a debate that will not help noble Lords with the key business of the House today, namely scrutinising the detailed contents of the Financial Services Bill. It may help your Lordships to know that in another place on Thursday there will be debates on two Motions—one an opposition Motion, another a government Motion—to consider in detail the questions that we have debated at some length this afternoon. It is appropriate to leave another place to debate those Motions on Thursday so that we get on with and stick to the Committee’s core task today on the Financial Services Bill.
Lord Carlile of Berriew
I am grateful to my noble friend for his response. Will he confirm that, if there is to be an SFO-led inquiry into any criminality arising from the LIBOR incident, the SFO will not be expected to meet the cost of that inquiry from its existing budget but will be given the separate funding needed so that the inquiry can be full, complete and properly resourced?
Lord Sassoon
My Lords, as was in the Statement yesterday, I can confirm that the SFO is on the case, looking at all the possibilities for criminal prosecutions and that the Crown Office in Scotland is doing likewise. There has been no request of which I am aware from the SFO for additional resources. I assure my noble friend that, if there was such a request, it would be looked at sympathetically by the Government. It has been an important and lively debate because these are critical issues for the financial services industry and I hope that, with those further explanations, the noble Lord, Lord Eatwell, will withdraw his amendment.
Egypt: Mubarak Family Assets
Lord Carlile of Berriew Excerpts(13 years, 2 months ago)
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Lord Sassoon
My Lords, it would be wholly wrong to discuss individual cases. Indeed, it is a matter for the police and the Serious Organised Crime Agency, because in parallel to what I have described as the EU route is the principal relevant UK legislation, the Proceeds of Crime Act 2002. Under that Act, it is for the police and SOCA to initiate as they see fit, and not for the Government to direct, any action on criminal activity that relates to proceeds of crime or money laundering.
Lord Carlile of Berriew
My Lords, given the many assertions that the Mubarak family and their acolytes are the ultimate beneficiaries of substantial funds that are now held by British financial institutions, does my noble friend agree that it might be timely to remind those financial institutions and their compliance officers of their obligations to report suspected money laundering so that those institutions might fully exercise their part in ensuring that any criminal funds are found and released in the appropriate way?
Lord Sassoon
I am grateful to my noble friend. I have explained two parts of the construct: the EU angle and the Proceeds of Crime Act. Of course, it is highly relevant that banks are obliged under their normal reporting rules to file relevant reports if they see any suspicious activities. That relates particularly to any engagement and due diligence that is necessary in relation to politically exposed persons. This is a good opportunity, prompted by my noble friend, to remind the banks of their obligations under those ongoing rules, which I know the banks take extremely seriously.
Individual Savings Accounts
Lord Carlile of Berriew Excerpts(13 years, 4 months ago)
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Lord Sassoon
I am sorry to shut the door on this one, but the Government have considered this issue since we came into office, just as no doubt the previous Government had plenty of advice since they introduced ISAs in 1999. We have looked at it again and I am sorry to say to both the noble Lord, Lord Barnett, and my noble friend Lord Lee that I cannot hold out any other prospect. The AIM market continues to thrive. At the moment, almost 1,200 companies are quoted on it, 974 of which are UK companies, and the market is quoted at £67.6 billion, so it continues to be in good health in what I recognise are challenging investment conditions.
Lord Carlile of Berriew
My Lords, I, too, declare an interest as a director of an AIM-listed company. What tests are not applied to AIM-listed companies that are applied to full exchange-listed companies? Does the Minister accept that the boards of AIM-listed companies feel that they are subject—indeed, they are subject—to the same accounting rigour as FTSE-listed companies and that it is therefore now completely illogical to maintain this distinction?
Lord Sassoon
My Lords, without wishing at all to cast aspersions on the quality of AIM companies, it is nevertheless the fact that you can come to the AIM market without a trading record and with no minimum number of shares in public hands. Also, the UK Listing Authority does not usually vet the prospectus of AIM-listed companies and there is no minimum capitalisation requirement. Therefore, there are different requirements and obligations on AIM companies from those that apply to listed companies.
Terrorist Asset-Freezing etc. Bill [HL]
Lord Carlile of Berriew Excerpts(13 years, 6 months ago)
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Lord Sassoon
Under Clause 1, people anywhere in the world can be designated. To repeat myself again, the prohibitions, on the other hand, apply only within UK jurisdictions; that is, to assets either held in the UK or held by UK persons such as banks overseas. That is about as clear as I can be on the Government’s understanding of the scope of Clause 1. The people overseas who are subject to asset freezes are operating in environments where it is not possible to charge or to convict them clearly of terrorist offences, but where it is necessary in order to disrupt their actual or potential—
Lord Carlile of Berriew
Perhaps I may tempt the Minister into a more direct answer to the question posed by the noble and learned Lord, Lord Lloyd. Surely what he is saying amounts to no; it does not have extra-territorial effect. A clear answer to that effect might be helpful for future purposes.
Lord Sassoon
Not being a lawyer, I was trying to give a clear statement of what effect Clause 1 has in relation to the underlying reality of where it bites. As to whether this does or does not mean that it has extra-territorial effect, I will leave that to lawyers to sort out. However, I am now given advice which says that Clause 33 sets out the extra-territorial application of the offences. Perhaps that will help on this point.
Lord Mackay of Clashfern
My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).
Lord Carlile of Berriew
My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.
Lord Bach
My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.
I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security—it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he sums up the debate. What are the differences between the two regimes, especially in relation to the special advocate system?
I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.
Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.
Lord Lester of Herne Hill
My Lords, I have added my name to the noble Lord’s amendment because I am a member of the Joint Committee on Human Rights and we dealt with the issue in paragraphs 1.41 to 1.44 of our latest report. Indeed, together with the noble Lord, Lord Judd, I was a member of the previous Joint Committee on Human Rights, when we made similar recommendations.
In our report, we paid tribute to the Government—it is important that tributes should be paid—for the way in which, during the passage of this Bill, they have moved in a human-rights compliant direction. One of the many ways in which they have done so, as we report at paragraph 1.42, relates to the two additional safeguards that have been included:
“First, there is a requirement that the Treasury report quarterly to Parliament about the exercise of the powers. Second, that the Treasury is required to appoint a person to conduct an annual ‘independent review’ of the operation of the asset-freezing regime, reporting to the Treasury which lays a report before Parliament”.
The Joint Committee then states at paragraph 1.43:
“Safeguards which enhance democratic accountability for the exercise of counter-terrorism powers are clearly to be welcomed from a human rights perspective. Our predecessor made a number of detailed recommendations for improving such safeguards, including that the post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament, on the grounds that a reviewer with a supporting secretariat within Government might suffer from a perceived lack of independence from the Government”.
The committee therefore recommended that,
“consideration be given to amending the Bill so as to give Parliament the power to appoint the proposed independent reviewer and for the reviewer to report directly to Parliament, in line with earlier recommendations concerning the statutory reviewer of terrorism legislation”.
Like the noble Lord, Lord Judd, I pay tribute to my noble friend Lord Carlile for the work he has done as reviewer. Nothing I am about to say should be taken in any way as a criticism of his fine work. In previous debates, I have made the case that important public appointments should be made at least with the advice and consent of Parliament, not only by the executive branch. I am not suggesting that this is an occasion when that principle needs to be slavishly followed, but it is one that has a great deal to commend it. In other states that I can think of in Europe and beyond, it is regarded as good governance.
I am not in favour if disfiguring Bills with too much unnecessary detail, and there may well be other ways than this amendment of accomplishing the objective indicated by the noble Lord, Lord Judd: that is, to enhance public confidence in the perceived independence of the reviewer.
When for 18 months under the previous Government I acted as the independent unpaid adviser to the right honourable Jack Straw, Minister for Justice, one of the requirements on which I insisted, and which the Cabinet Office strongly resisted, was that I should not have an office in the Ministry of Justice and that I should not have a secretary appointed within the ministry. The Cabinet Office could not understand why I took such a strong position. I said, “Well, I am meant to be the independent adviser and it seems to me important that, as a matter of public confidence, I do not have staff from, or an office located in, the ministry”. In the end, as I said that I would not do the job otherwise, the Cabinet Office had no alternative but to comply.
I appreciate the reasons why that has not happened in the case of my noble friend Lord Carlile, and I can see arguments of convenience about security and confidentiality that would point in the other direction. However, if I am allowed, I would say to the noble Lord’s successor that, whatever the fate of these amendments, I very much hope arrangements will be made to enhanced the perceived independence of the reviewer in order to enhance public confidence. It does not have to be done in the way suggested in this amendment: it can be done administratively, provided that sensible arrangements are made. So I support the objective of the amendment, and although I have no doubt that it will not be pursued to a Division today, I hope that the principle that the Joint Committee on Human Rights has made several times will be appreciated within the Executive. I am sure that they will appoint an admirable person without the need for parliamentary intervention, although I would prefer some parliamentary involvement in the process. That person, whoever is appointed—it is a matter of judgment and character—needs to act in a way that will enhance public confidence.
Lord Carlile of Berriew
My Lords, I fear that it would be negligent if I did not take a little bit of the House’s time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously—I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them.
I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said.
I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary’s Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since.
I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government—whom I support politically, at least, although I am neutral for this purpose—will also make mistakes. It is a very difficult area.
The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the question of independence, I should say that it really depends whom you speak to. I fear that I may have been cited on most sides of almost every argument about counterterrorism. If that is evidence of independence—and it may well be—I am satisfied with that position.
About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug —9-12 Bell Yard. My chambers, as one would expect of a good set of barristers’ chambers, has been prepared to put up with that inconvenience—possibly because I was head of chambers for six and a half years of the time that I have been doing it.
I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room—it even has a sofa, which is quite hard to get these days in the Home Office—which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure.
I confess to your Lordships that on my not-very-frequent visits to that office—perhaps, on average, I go there about once a fortnight—I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice.
The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year—my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet—should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so.