Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

First, I thank the Government Front Bench, whose approach to this very serious Bill has been measured and appropriate. The noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord Wolfson of Tredegar and Lord Parkinson of Whitley Bay, have been incredibly open with the House, and we are very grateful for that. I cannot remember whether this is their first Bill, but they have conducted it incredibly well. May I particularly mention the noble Lord, Lord Parkinson of Whitley Bay, who ended up having to take this Bill when, I think, the person originally nominated left in somewhat of a hurry? He did an incredibly good job.

We have had very open and co-operative help from the Front Bench. It is clear that we on this side of the House strongly support many of the measures. We did not reach agreement on TPIMs or polygraphs, but we have made changes, particularly in relation to TPIMs. Some were agreed by the Government, but they did not agree to all of them. I very much hope that those in the other place will consider very seriously the changes that we have made, which have focused mostly on TPIMs, and will perhaps think that we have provided appropriate protection, but in a more nuanced and better way.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.

My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?

We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.

In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?

In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?

Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.

In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.

In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.

Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.

As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.

This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.

The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.

I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.

In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.

Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.

I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.

That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.

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Moved by

[Lord Falconer of Thoroton]

20: After Clause 35, insert the following new Clause—
“Review of polygraph testing on terrorist offenders
(1) The Secretary of State must, within six months of this Act being passed and before sections 32 to 35 come into force, conduct a pilot of the use of polygraph testing on terrorist offenders.(2) The outcome of the pilot must be reported to Parliament within 12 months of this Act being passed.(3) The report must include—(a) data on the number of terrorist offenders who have been subject to polygraph testing during the pilot;(b) an explanation of how the results of polygraph tests have been used during the pilot;(c) an analysis of the effect polygraph testing has had on the licence conditions of terrorist offenders;(d) data on the number of terrorist offenders who were recalled to prison on the basis of polygraph test results;(e) a recommendation from the Secretary of State as to whether sections 32 to 35 should enter into force following the pilot; and(f) evidence from independent research on the reliability and value of polygraph testing of terrorist offenders.” Member’s explanatory statement
This new Clause requires the Secretary of State to conduct a pilot test of the use of polygraph testing on terrorist offenders and report the outcome to Parliament, in addition to setting out evidence for the reliability of polygraph tests based on independent research.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment proposes that the Secretary of State, within six months of the Bill being passed, should set up a pilot to see how the polygraph condition works in relation to terrorist offenders. It is a probing amendment. It may well be that a different or longer period would be required for the pilot, but the purpose of a pilot is to test a number of aspects of polygraph testing. We have gone through this on the previous group, and I do not want to spend too much time on it because we have already discussed it a lot, but I have three particular concerns that would be tested by a pilot.

First, how does polygraph testing operate in practice? I would be grateful if the Minister, who was very helpful on the previous amendment, would give us some indications about how it works in practice. By that, I mean the following. If one asks a question of an offender in a polygraph test, “Did you, in breach of your conditions, visit a certain place?”, and he gives an answer to which there is—to use the language of the Minister and the briefing—a significant response, does that mean that further investigations take place? If there is no significant response, would that mean, for example, that there would not be any further investigation? Does that give rise to risks that too much reliance will be placed on the answers in polygraphs to, for example, not undertake further investigations?

My second area of concern is the one raised by the noble Baroness, Lady Hamwee, on Amendment 19. It would appear from the very helpful answer given by the Minister on the previous group that answers given would be admissible in proceedings against another offender, albeit that their admission would be subject to the discretion of the trial judge for the other offence. In certain circumstances I can see very clearly that they might be of real evidential value—for example, because they constituted an admission or because they constituted evidence of a conspiracy, depending on the content of what is being said. Can I take it that the Government are saying that they might in certain circumstances be admissible and that they are content for that to be the position? It is important that the Committee knows what the position is.

Thirdly, am I right in saying that decisions about recall are made not by a court but by a probation officer, and are there any reasons why he or she should not rely on a significant response—to use lay man’s language, a failure—of a polygraph test? I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, the questions that have been asked are important. We cannot assume that the rules that currently apply for use with sex offenders are going to apply in terrorism cases. Indeed, Clause 35(2) tells us that there may be particular rules for terrorism cases, and even if that was not in the Bill, we know that rules can be changed at any time, relatively easily.

Polygraphs do not have a great reputation with the public, and “The Jeremy Kyle Show” did not enhance it, which is another reason for wanting to explore details today. I made the point only yesterday on the Domestic Abuse Bill that operators have to follow courses accredited by the American Polygraph Association, and I was interested—I will try to use a neutral term—that we in this country are following American practice.

Under the rules, there are requirements about reports and records. I had a look at the 2009 rules, under which the operator is required to explain the requirements of the session: that anything disclosed might be communicated to the probation officer, and that there must be consent—or, rather, written confirmation—from the offender that these explanations have been given. I stopped myself calling it “consent” because, in that situation, I wonder whether the anxiety to which my noble friend Lord Thomas referred would preclude a complete understanding by the offender of what is happening. In that situation, knowing that refusal to take a test would amount to a breach of licence conditions, would you not sign anything?

The current reviewer of terrorism legislation has called for a pilot, and, if not a pilot, then post-legislative scrutiny. Not many Bills come along for post-legislative scrutiny by Parliament. The noble and learned Lord, Lord Stewart, painted a picture that I did not quite recognise. It sounded rather more like a departmental review—an internal review—than scrutiny by Parliament to see how an Act is getting on.

At last week’s briefing, I asked about the reliability of polygraphs used on subjects who have undergone some extreme experiences, such as having been in a war zone. I understand that that cohort is particularly in the Government’s mind at the moment. The professor of psychiatry—Professor Grubin, I think—who, I understand, advises the Home Office, realised that I was referring to trauma. I had not wanted to assume that they were subjects who had been traumatised, but he was right. I remain concerned not only about what might be perceived from offenders’ reactions but that the test itself might be retraumitising, so I think that the questions being posed are very helpful.

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[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to everybody who has participated in the debate, particularly the noble Baroness, Lady Hamwee, the noble Lords, Lord Thomas and Lord Paddick, and the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon—all of whom, with the possible exception of the noble Lord, Lord Paddick, supported the idea of some sort of pilot. I am also very grateful to the noble Lord, Lord Wolfson of Tredegar, for his response.

I take from this debate that there are very considerable issues and uncertainty around the use of polygraphs because they are quite new in this country. Like everybody else, I am concerned that, if they are a genuinely useful tool, they should be available to the authorities.

I am struck by what the noble Lord, Lord Wolfson, said about not having enough terrorist offenders on which to base a pilot, and I take note of that. I understood him to say that the Government will themselves carry out a review within two years. In light of what he said, I am minded to think that the right thing to do is to come back on Report with an amendment suggesting a pilot which can embrace all the terrorist offenders, because there will not be that many. That will not restrict the Government from using them now, but it will require them within two years—not the 12 months I have referred to—to come back with the information referred to in proposed new subsection (3) of the amendment. That would be good from the point of view of informing the public about polygraphs and, more importantly, informing the Government on how they do it, because they have to make a report on it.

I am very grateful to the noble Lord, Lord Wolfson, for his response, and I beg leave to withdraw my amendment.

Amendment 20 withdrawn.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past.

The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial.

The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well.

Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject.

These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008,

“we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves.”

The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to “reasonably believe” that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied

“on the balance of probabilities”

—the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to

“has reasonable grounds for suspecting”.

A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect.

If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said:

“I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; cols. 6-7.]


That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals.

It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases.

The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of “reasonable grounds for suspecting”. After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former.

The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with

“on the basis of reasonable and probable grounds”.

I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening.

The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I am delighted to follow the noble Lord, Lord Paddick, as ever. I am sorry that he did not have the energy to get to my amendment, but I completely understand why that would be. The difference between my amendment and that of the noble Lord, Lord Anderson, is that mine seeks to unpack what the standard of proof would be; it requires an objective standard of “probable grounds”: in effect, balance of probabilities, but more spelled out. The difference between the amendments is that, in effect, the noble Lord’s amendment would give a year when the lower standard—namely, reasonable suspicion—could apply and thereafter insist on the balance of probabilities. The real difference is that first year of grace which the noble Lord, Lord Anderson, would give to the Government or the Secretary of State to have a lower standard of proof.

Our position on this side of the House is that the TPIM powers have utility to the Government for fighting terrorism. The noble Lord, Lord Paddick, indicated clearly the intrusive effect of TPIMs on those subject to them; for example, having to move to a different location, not being entitled to go to particular places, or not being able to associate or communicate with particular people. These are powers of utility for the Government. They are, however, intrusive and infringe against what would otherwise be people’s rights. Before those rights are taken away, it is for this House to decide what the right balance should be between those individuals’ rights and the protection of the public.

All those who have looked at it in any detail, in particular the noble Lord, Lord Anderson, and his successor as the terrorism reviewer, take the view that the higher standard of proof from that which the Government currently propose—namely, the balance of probabilities—has not caused them any difficulty in imposing TPIMs where they want to. As the noble Lord, Lord Anderson, put it, there is no need to lower the standard to keep the public safe.

In addition to the point that no change is required, a significant change is being made to the ability to roll over TPIMs indefinitely, so the consequence of the proposed amendments to the existing law being suggested by the Government in this Bill is to lower the standard of proof for no purpose and to do so on the basis of indefinite restrictions on individuals’ liberty.

The right reverend Prelate the Bishop of Manchester was, in my view, correct to say that the right approach is to ensure that the Government have the right powers but also to ensure that people are confident that they are being properly imposed. If people do not have that confidence, it will cause difficulties down the line.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee said, requiring a TPIM subject to relocate can have significant consequences, particularly, for example, if he or she has school-age children. It is a well-established fact in the rehabilitation of offenders that social ties are powerful in preventing reoffending. Relocating to another part of the country, presumably, would have the opposite effect.

Clearly, if there is a national security issue that requires the TPIM subject to be relocated somewhere they are not easily in contact with people they should not be in contact with, relocation should be considered. But to allow relocation simply to save police resources seems neither necessary nor proportionate.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because

“the variation is necessary for reasons connected with the efficient and effective use of resources.”

While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it

“is necessary for reasons connected with efficient and effective use of resources.”

I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have explained, this amendment is intended to prevent the possibility, as proposed by Clause 39, of varying a TPIM subject’s relocation measure for reasons connected with the efficient and effective use of resources in relation to that individual. I hear what they say about wanting to understand and explore that through this amendment.

We do not believe that the amendment as drafted would have that effect in practice, and we think that it could inadvertently broaden out the application of the clause to enable relocation of the TPIM subject for the second time for any reason. However, as I say, I understand the questions which lie behind their tabling it.

The Government are committed to future-proofing the TPIM regime to ensure that our operational partners are fully supported to manage TPIMs efficiently and effectively. Clause 39 has an important role in doing that. It will allow the Home Secretary to move an already relocated TPIM subject to an alternative location, if necessary, for resource-related reasons, provided that the national security reason for requiring relocation still exists—that is key to note.

We want to ensure that operational partners, and in particular counterterrorism policing, are supported in their function of managing this small but significant cohort of high-risk individuals within the community. This clause seeks to ensure that there is a greater degree of flexibility in the system, so that there can continue to be effective management of a TPIM subject when operational circumstances evolve.

To provide a real-world example of where a police force finds that resources are affected, I draw the Committee’s attention to the Novichok poisonings in Amesbury, in Wiltshire, in June 2018, which suddenly and significantly diverted police resource in a small force for a considerable period of time to that important and high-profile investigation. In such a scenario, if a TPIM subject was residing within the force area, it might no longer be possible for counterterrorism policing to provide the same dedicated resources to ensure that the TPIM was being managed effectively and in a way that reduced the threat to the wider public.

The new ground to vary the relocation measure could also potentially be used to cover the following: first, a temporary move of the TPIM subject because all relevant counterterrorism officers with the necessary skills become unavailable at the same time due to illness or another temporary reason, such as during the current pandemic, for example, which I am sure will be on noble Lords’ minds; or, secondly, in circumstances where the presence of the TPIM subject becomes known locally and, as a result, there is increased pressure on counterterrorism resources to keep the subject both monitored and safe.

The noble and learned Lord, Lord Falconer of Thoroton, asked about the test for the Home Secretary. When first deciding where to relocate a TPIM subject, provided there is a national security reason to do so, the Home Secretary takes into account various factors to arrive at a proportionate decision. These include but are not limited to: the personal circumstances of the individual; the availability of services and amenities, including access to employment, education, places of worship and medical facilities; the proximity to prohibited associates; and the demographics of the community. It is reasonable to apply a similar approach when deciding whether the police force area in which the TPIM subject currently resides continues to be the most appropriate area for them to be placed.

We do not anticipate this ground to vary the relocation measure being used except in exceptional circumstances. We fully recognise that the relocation of a TPIM subject —or the re-relocation of the subject, as would be the case if relying on this new ground—is a significant action to take given the potential impact on the individual and could be used only when necessary and proportionate to do so, taking into account their Article 8 rights. The Government understand that stability in a subject’s life is a crucial factor behind their rehabilitation and supporting them to move away from an extremist mindset, which, of course, we want them to do.

The noble and learned Lord, Lord Falconer, rightly said that this amendment does not address head-on the question of relocation. However, as he raised it and noble Lords are interested, it is worth reiterating that the Home Secretary can relocate a TPIM subject only if it is necessary and proportionate to prevent and restrict involvement in terrorism-related activity, that consideration is always given to the subject’s Article 8 rights, and that, furthermore, a TPIM notice does not prevent an individual seeking or maintaining employment or study—in the past, TPIM subjects have pursued both of those. It is also worth reminding the Committee that TPIMs are different from the control order regime. Under control orders, somebody could be relocated anywhere in the country, whereas under TPIMs, relocation is up to 200 miles away from their home address.

We assess that, in most cases where a TPIM subject has been relocated but there is then a requirement to move them to a new place of residence, that is provided for within existing legislation. However, as with several of the changes we are seeking to introduce through this Bill, we deem it important expressly to create this flexibility for our operational partners within the TPIM Act 2011 as part of our mission to future-proof the system and to ensure that TPIMs can be managed efficiently and effectively.

Decisions to vary the relocation measure for resource reasons will be capable of appeal. As with other unilateral variations to the TPIM notice, the function of the appeal court will be to review whether the variation was necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Additionally, however, for variations to the relocation measure on resource grounds, the appeal court will also review whether the variation was necessary for the efficient and effective use of resources.

Given the crucial tasks that we expect of our operational partners, we want to ensure that we support them as best we can in their effective management of TPIM subjects, as well as in their ability to respond to other high-priority work such as the examples I have given.

Amendment 30B is consequential on Amendment 30A, and the same arguments apply. I therefore invite the noble Baroness not to press her amendments.

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[Lord Paddick (LD) [V]]

My Lords, the only thing that I will add to what my noble friend Lady Hamwee has said about this amendment is an assumption that, even if the subject of the TPIM provides the authorities with all the details of his or her communications equipment—computers, mobile phone and so forth—it would be possible that they could end up borrowing a device from somebody else in his or her household. That is what the authorities are seeking disclosure of, to ensure that they keep track of all the communications the subject of the TPIM is engaged in. As my noble friend Lady Hamwee said, the provisions contained within Section 43(2)(a) reinforce the fact that TPIMs can impact to a highly intrusive extent on innocent people living with the subject of the TPIM.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of

“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”

Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.

However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I wholeheartedly agree with the final comments of the noble and learned Lord; that is exactly what Committee stage is for. It has been thorough but good natured, and long may that continue.

Clause 43 amends the existing electronic communication device measure in order that a TPIM subject will be required, upon request, to provide details of electronic communication devices—also known as ECDs—which they possess or use, or any such devices belonging to other individuals in their residence. It almost goes without saying that in the digital age in which we now live there is vast scope for ECDs to play a key role in the conduct or facilitation of terrorism-related activity, including attack planning and the radicalisation of others in a bid to inspire them to carry out a terrorist attack.

Amendment 30F would prevent the Home Secretary from being able to require TPIM subjects to provide details of electronic communication devices belonging to other people in their residence. This would significantly undermine the utility of the changes we are seeking to make and would ultimately be to the detriment of national security. We have seen in the past that TPIM subjects will access or try to access devices belonging to others in their household, as the noble Lord, Lord Paddick, rightly noted.

Clearly, there is an important balance to be struck between security and civil liberties, particularly of family members such as children. But we are clear, particularly given how sparingly we envisage this measure being imposed, that any impact on those residing with the TPIM subject—such as their family members—will be proportionate.

Preventing the Home Secretary from being able to require the provision of certain ECD-related information, as this amendment would have it, would leave a gap in a potentially useful information source which can assist with the effective management of the TPIM subject. I am happy to reassure noble Lords that, as with all measures contained in Schedule 1 to the TPIM Act, this measure will not be applied unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.

The Committee has already heard during the course of today’s debate that the TPIM regime has inbuilt and robust judicial oversight. This includes all TPIM subjects having an automatic right to have a court review of the imposition of their TPIM notice and each of the measures imposed, as well as a right of appeal should a TPIM subject wish to challenge a variation to one or more measures contained within the TPIM notice. This oversight will of course apply to the updated ECD measure proposed in this clause.

I hope that that provides noble Lords with the reassurances that they were hoping to receive and I invite the noble Baroness to withdraw her amendment.

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[Lord Falconer of Thoroton (Lab) [V]]

The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,

“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”

Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.

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[Lord Paddick (LD) [V]]

My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.

[Lord Stewart of Dirleton (Con)]

My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.

Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.

The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.

Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.

Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?

[Lord Falconer of Thoroton (Lab) [V]]

I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.

This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.

Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.

I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.

What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.

The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.

Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?

It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.

In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?

Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?

Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.

On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.

On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.

I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.

I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.

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Moved by

[Lord Falconer of Thoroton]

7: Clause 16, page 16, line 33, at end insert—
“( ) Section 255 of the Sentencing Code (extended sentence of detention: availability) is amended as follows.( ) After subsection (2) insert—“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—(a) take account of the offender’s age;(b) consider whether options other than an extension period of eight to ten years might be more effective at—(i) reducing the risk of serious harm to members of the public, or (ii) rehabilitating the offender.(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”( ) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.( ) The report of the first review must be laid before Parliament within one year of this Act being passed.”

[Lord Falconer of Thoroton (Lab) [V]]

Through this amendment, before the court considered whether to apply an extended sentenced of eight to 10 years to somebody aged under 18 at the time of conviction it would have to consider a pre-sentence report. That report should specifically address the age of the defendant and whether there are alternatives to the extended sentence of eight to 10 years. If the pre-sentence report considers that there are alternatives, the court is then obliged to consider that. It can reject it, but it has at least to consider it.

The amendment reflects our belief that for young adults, or people who might not even be adults, there may be, on the particular facts of a particular case, other ways better to protect a community than an extended detention period of eight to 10 years. The amendment would not require a court to accept that, but it would ensure that there is proper focus on whether there are better ways of protecting the community. I beg to move.

[Lord Woolf (CB) [V]]

My Lords, I adopt what the noble and learned Lord, Lord Falconer, said and will add a few words. Although it was not accepted, I suggest that, from a practical point of view, the other provisions of the Bill would fall within what the Secretary of State might want to consider in reviewing the effectiveness of the section once a year has passed. That makes such a review highly desirable.

It is always possible for something to be thought of as exceptional, which, in fact, cannot be shown to fall within that limitation. It is a very healthy safeguard if the matter has to come before the Secretary of State as indicated in the proposed amendment, because that will give an opportunity to reconsider based on the experience of actually seeing the provisions of the Bill being implemented in the Act of Parliament, which in due course will be passed.

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[Lord Wolfson of Tredegar (Con)]

My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.

I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.

I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.

I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

[Lord Stewart of Dirleton (Con)]

My Lords, the purpose of the amendment was to reflect the approach adopted across England and Wales, and Northern Ireland. The “waterfall” approach means that courts can impose the new sentence only where they do not impose, for example, a life sentence or an extended sentence. Within the Scottish sentencing framework, this waterfall includes the sentence of detention without time limit, which was unintentionally omitted during initial drafting of the clause. As I said earlier, subsection (6) in the previous version of the Bill was amended during the Commons debate. The amendment would simply remove a reference to a provision that no longer exists.

Just as the noble Lord, Lord Thomas of Gresford, is aware of attractive waterfalls in Scotland, I am aware of attractive waterfalls in Wales. I hope that some day soon we will be permitted to discuss them in a friendly fashion together.

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Moved by

[Lord Falconer of Thoroton]

11: Clause 27, page 24, line 5, at end insert—
“and the prisoner was aged 21 or above at the time of their conviction”

[Lord Falconer of Thoroton (Lab) [V]]

These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.

There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.

Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.

“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.

The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.

Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.

I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained, Amendments 11, 13 and 14 are intended to retain the current release provisions for under-21s sentenced to an extended determinate sentence for a serious terrorism offence. As has been mentioned, the Fishmonger’s Hall and Streatham attacks revealed the devastating consequences of releasing terrorist prisoners too early. In the Bill, we are changing the release arrangements for all offenders convicted of serious terrorism offences to ensure that the most dangerous and serious terrorist offenders serve their full custodial term, essentially for two reasons—first, to reflect the severity of their crimes but, secondly and perhaps more importantly, the intention to preserve lives.

The amendment seeks to draw a distinction in release policy between those aged over 21 and those younger. However, the Bill will introduce changes to release for both adult and youth offenders sentenced for serious terrorism offences. The extended determinate sentence already operates in the same way for adults and youths in every other aspect, and because the nature of the offending and the threat posed is so severe, these changes should align with that pre-existing approach.

For those aged under 18, instances of terrorist acts occur, although, thankfully, they are rare. I shall come back to that point later. Among those under-18s are some who are capable of extremely serious offending and present a real threat to the public. They are the dangerous few youth offenders that these provisions aim to capture. This measure, therefore, is about offenders who have been deemed dangerous by the court. That also means that, when sentencing the offender to an extended determinate sentence, the judge would have already taken into account age and other relevant factors.

In that context, I turn to the points raised by the noble and learned Lord, Lord Falconer. As to the possibility of change, one has to remember that this measure is about public protection and applies only to the most serious young offenders who have committed terrorist offences that carry a maximum sentence of life and have been deemed dangerous by the court.

We are alert to the point on prisoner management and have carefully considered it. There are a number of programmes within prison to make sure that the sentences proposed here do not adversely affect prison management within the institution. Although, as the noble and learned Lord, Lord Falconer, correctly said, the prisoner is likely to end his sentence as an adult, the fact is that even when sentenced at the time, the nature of the offences mandate the sort of sentence we now propose.

As to the point made by the noble Lord, Lord Thomas of Gresford, on radicalisation in the prison system, there are, as my noble and learned friend Lord Stewart pointed out, a number of interventions in the prison system designed to prevent radicalisation. They are extensive. I will not go over the points that he made earlier but I repeat and endorse them. As I said—I said that I would come back to this point—the number of young offenders in this regard who have been radicalised in prison is extremely small. We are alive to the noble Lord’s point, but do not believe that that is a reason not to proceed in the way in which the Bill is currently drafted.

Finally, and only because I wish to reassure the noble and learned Lord, Lord Falconer of Thoroton, that I read all his amendments with extreme care, these seem to be technically defective, given that the wording is to be added after the close of quotation marks and, on the face of it, would appear to apply only to new Section (2A)(iv), and affect only the provisions related to service personnel. However, I hope that I have approached his amendments on their merits. For those substantive reasons that I have set out, I respectfully invite the noble and learned Lord to withdraw or not move his amendments.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble Lord, Lord Wolfson of Tredegar, for the careful way in which he dealt with my amendments. I fully accept and am guilty of the technical error he identified. He was kind to deal with the merits of the three amendments. I very much hope that the Government will reflect on what I and the noble Lord, Lord Thomas of Gresford, said because it is a considerable mistake to treat the under-21s the same as those who are 21 or over, particularly with regard to public safety. We will return to this matter at a later stage. With the leave of the Committee, I will withdraw my amendment.

Amendment 11 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

[Lord Falconer of Thoroton (Lab) [V]]

This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.

The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.

[Lord Wolfson of Tredegar (Con)]

My Lords, in this amendment the noble Baroness, Lady Prashar, whose experience in this area is profound, proposes replacing Clause 27 with an amended set of provisions. Certainly as I read them, their effect—and to deal immediately with the point raised by the noble and learned Lord, Lord Falconer of Thoroton—is to provide that all prisoners subject to an extended determinate sentence or a serious terrorism sentence would be eligible for relief by the Parole Board at the two-thirds point of their custodial term. In concept, therefore, this is similar to the intention tabled by the noble Lord, Lord Marks of Henley-on-Thames, which he referred to— we will come to it shortly—as he opposes Clause 27 standing part of the Bill. With this amendment, the noble Baroness goes further: to replace Clause 27 with a new provision. If I may say respectfully, the noble Baroness is correct to identify that without Clause 27 there must be some replacement provision included to provide the legislative authority to release those sentenced to the new serious terrorism sentence.

Serious Criminal Cases Backlog

Lord Falconer of Thoroton Excerpts

Tuesday 26th January 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, by 2010 the system did 150,000 jury trials a year with about 47,000 waiting, about 30%. The median period between crime and court disposal was 240 days. By the time the pandemic started in March last year, jury trials were down to 100,000 a year with a median delay of 305 days, so fewer trials and longer waits. Now there are 54,000 cases awaiting a jury trial and rising. No one can blame the courts for Covid. The judges, court staff, defence and prosecutors have done bravely and well but the Ministry of Justice has overpromised and underdelivered. It said that there would be 200 Nightingale courts in which jury trials could be done; there are 20. Some 600 people in the last seven weeks have got Covid, from judges to court staff. There is no systematic testing. We have not made the necessary changes to preserve jury trials. What is the target for getting the backlog down and how is it going to be achieved?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the noble and learned Lord fails to put this information in context. In the Crown Court, prior to the Covid pandemic hitting in March last year, the outstanding caseload was 39,000, which was well within the range of 33,000 to 55,000 over the last decade. Immediately before the pandemic hit, we had increased the number of sitting days in response to an incoming demand on the courts. He will be aware that we have taken various steps to ensure that delays are minimised. However, I agree with him on one point: that we should pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, CPS staff and, if I may say so, MoJ officials who have made a monumental effort to deliver justice in very challenging times.

Right to Die

Lord Falconer of Thoroton Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Faulks]

I am grateful for that suggestion. There are different views about whether it is appropriate for the Supreme Court to instruct Parliament to do anything. A lot of academic lawyers consider that Parliament is much better equipped to decide these issues. Judges and courts will inevitably consider the matter on a case-by-case basis as opposed to the polycentric view that Parliament will be able to bring to it. I respectfully submit that it is a matter for Parliament.

[Lord Falconer of Thoroton (Lab)]

My Lords, there are significant issues about end of life: palliative care, which everyone wants to see better and more widespread; the assisted dying issues which the noble Baroness, Lady Meacher, referred to; and also how end-of-life decisions are taken with people who are dying, which is nothing to do with the assisted dying issue. With a new Government and with genuine concern about this issue, what would the Minister think about a royal commission or a similar body being set up to address the issues of end-of-life care, including assisted dying?

[Lord Faulks]

The noble and learned Lord will not be surprised that I am not able to give any announcement to the effect that there should be some sort of commission at this stage, but clearly there remains great concern. This is a very difficult issue. Polling indicates a move towards the approach exemplified by the noble and learned Lord’s Bill. No doubt any Government, of whatever hue, will have in mind what the public want.

Crown Court (Recording) Order 2016

Lord Falconer of Thoroton Excerpts

Wednesday 27th April 2016 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the draft order removes the prohibition on recording court proceedings to the extent necessary to enable a judge’s sentencing remarks in the Crown Court to be recorded on a not-for-broadcast basis for the purposes of a test. Before setting out details of the order, I will briefly explain some background to the policy.

As noble Lords may be aware, the recording and broadcast of proceedings in courts, other than the Supreme Court and the Court of Appeal, is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April 2013, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make an order specifying circumstances in which the prohibitions on recording and broadcasting may be lifted. The Crown Court (Recording) Order 2016 is the second order to be made under that power.

Why are the Government doing this? There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Of course, few people have direct experience of court proceedings, and public understanding of the way the justice system works is inevitably limited. In principle at least, our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to attend and see what happens in person. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society, and therefore to allow cameras into our courts.

While it is important for justice to be seen to be done, this cannot be at the expense of the proper administration of justice, the integrity of the trial process or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all parties involved. The proposed test period at the Crown Court venues agreed with the Lord Chief Justice provides the opportunity to examine how we can film in our courts in a way that protects the individuals involved and preserves the dignity of the courts and the trial processes.

I am conscious that there will be concerns about the welfare of victims and witnesses, and the potential for court broadcasting to have a detrimental effect on their experiences in court. In the event that a victim or witness is present in court during the recording of a judge’s sentencing remarks, there are a number of safeguards in place designed to minimise any potential impact that the recording might have. The order does not permit the filming of victims or witnesses, or indeed any other court user, including staff, members of the public, defendants and advocates. It will be a matter for the judge to decide whether or not filming of a particular case should be allowed and they will take into account the interests of victims and witnesses when considering this. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming in the interests of justice, or to prevent prejudice to any person. Any breach of the terms of the order may amount to a contempt of court.

None of the cases recorded during the test will be available for broadcast to the public. Recorded material will be used only by the judiciary, Her Majesty’s Courts & Tribunals Service and the Ministry of Justice for the purposes of the test, including assessing whether or not it has been successful.

The Government are committed to increasing transparency and providing the public with information on the operation of public services, and the justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work, and sentencing in particular, is critical to maintaining confidence in the system and ensuring that justice is seen to be done. We believe that the order before your Lordships today is an appropriate step forward in testing how we allow for greater visibility of what goes on in our courts without undermining the quality and reputation of our justice system.

At the end of the test period the lessons learned will be considered by the Lord Chancellor and the Lord Chief Justice to help inform their decision on whether or not broadcasting of judges’ sentencing remarks in the Crown Court should be permitted in future. If they agree, we will return to the House with a third order to allow broadcasting of recorded material to commence. I commend the draft order to noble Lords and I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for introducing this very interesting and important order, which my party and I support. I will ask a number of questions about the order itself and the policy underlying it, but before I do so, I will set out our position in relation to this. In principle, more broadcasting and recording of courts is a good thing because it increases public understanding of the court system and allows transparency in one of the important institutions of state.

I accept what is implicit in what the noble Lord, Lord Faulks, said, which is that any movement towards broadcasting of courts has to be done carefully. It has to protect witnesses, jurors, claimants, defendants and members of the public—children in particular—from any problems that may arise from the recording of court proceedings. In particular, one is conscious that being a witness in a criminal or civil trial is an anxiety-inducingin any event and one does not want to make people more anxious by having it filmed or recorded. But in principle we consider that there should be much more openness and broadcasting of what goes on in court.

First, the Act allows the lifting of the prohibition on recording what goes on in court, which is prevented by the Criminal Justice Act 1925. If the ban on recording is lifted, is it assumed that live broadcasting can take place or is it envisaged that all that can occur is a subsequent broadcast? I ask because the prohibiting word is “recording”. I respectfully suggest that the right course is that there should be the possibility of near-live broadcasting, subject to a very minimal delay, of what goes on in court but subject to the issues that I have identified.

Secondly, as the Minister said, two orders have been made under the Act: the Court of Appeal order and the sentencing remarks order. Is there a plan that will lead to maximum openness, assuming the process works, subject to the sorts of protections I have identified? That is, you do not want to film jurors, witnesses and victims. Is there a plan? It feels a bit random. We have had a Court of Appeal order in 2013 or 2014 and now a sentencing remarks order. Can the Minister please tell us what the overall plan is?

Thirdly, I understand that the Court of Appeal order has been considered, by which I mean that some review of it has taken place. Can the Minister tell us what the outcome of that review was? For example, what did the judicial participants in the Court of Appeal process think about it? Secondly, to what extent was it thought that there were changes in behaviour in court? I think I am right, although I may be corrected, that in the Court of Appeal the judges and advocates are now filmed as a matter of course. Do the Court of Appeal or the advocates—I hope that the advocates were consulted as well—think that their behaviour has changed as a result? Does it mean that things take more or less time?

I was very grateful for the very clear explanation of this order by the noble Lord, Lord Faulks. I read it in exactly the way that he read it, which is that it allows for the filming only of the judge himself and nobody else in court is filmed. It is for the judge himself, under Section 32, to decide whether or not a particular set of sentencing remarks will be broadcast. I do not see any time limit in the order but I assume that a timescale is envisaged. I am not asking for a time limit, but can the Minister say what time limit is envisaged?

The Minister indicated that the only people who would be assessing this would be judges and people in the Ministry of Justice. I recognise and accept that none of this is for broadcast, but I strongly urge the Minister that the group of people assessing the process should be much wider, obviously subject to appropriate confidentiality and to not allowing the not-for-broadcast test to be broadcast. We need much more, in all honesty, than simply the judges and the excellent Ministry of Justice officials; there needs to be a much wider group, subject to confidentiality, to look at it.

Finally, I have just come from the Hillsborough inquest. It is the most appalling shame that the conclusions of that inquest were not recorded, for either live or near-to-live broadcast. What are the proposals in relation to inquests? It would have been so good if what the jury concluded could have been readily available—for example, on the 1 pm, 6 pm and 10 pm news. You would not need to film the jury, you would have needed only to film the coroner setting out what the remarks were.

I am very supportive of this order but I am terribly anxious that things are going much too slowly. Although I completely agree about the need for care and thought about this, this is the second order after two and a half years with no apparent plan. Perhaps something a bit more focused is required, but we support this order.

[Lord Faulks]

My Lords, I am very grateful for the noble and learned Lord’s constructive comments and questions about this order and I am grateful, of course, for the Opposition’s support of it.

The overall purpose is, as I indicated, to ensure that the public have a clearer idea of what goes on in courts. The noble and learned Lord is right to say that progress is slow, but there are, I respectfully suggest, reasons to go slowly. Great care, as he acknowledges, has to be shown in how we develop it; care has to be shown for all those people potentially affected, including witnesses, as he said. Children are being excluded from this experiment, or test, altogether; clearly, we would be most concerned that children, in so far as they are allowed into court at all, would potentially be affected by expanding the scope of this order.

Of course, the Court of Appeal has been progressing with its own broadcasting and those who are disposed to find such things interesting can see a live feed of the Supreme Court. There is only a limited take-up, but I do not think there is any suggestion that it has adversely affected the way that the judges or advocates behave. Likewise, the judiciary considers the Court of Appeal experiment to have been successful and it has not noted any change of behaviour. I suspect that what happens is that people forget after a bit that the cameras are there.

Criminal Cases Review Commission (Information) Bill

Lord Falconer of Thoroton Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, like everybody else who has spoken in this debate, we on this side of the House warmly welcome the Bill and will give it every support. We hope it gets on to the statute book as quickly as possible. I pay tribute to the noble Lord, Lord Ramsbotham, both for his support of the Bill and for the clarity with which he explained it to us. I also pay tribute to Mr Wragg in the other place, who promoted it through all its stages and to the noble Lord, Lord Beith, who drew attention to it when he was the chair of the Justice Select Committee in the other place—all bearing fruit very quickly. I also pay tribute to the Government, who have unreservedly supported it throughout.

On one view, the Bill is quite a small change, but it is a quite important change. Mr Selous in another place identified a number of examples where it would be important: first, where the issue was whether a complainant in a sexual assault case had been paid by a media organisation; secondly, where a bank could give evidence in relation to payment; thirdly, where a shipping company could give evidence about when material came into the country in the context of a drug importation case; and, finally, in relation to the forensic service, which has been privatised, where the notes that experts make could be relevant to correcting miscarriages of justice. Those are powerful examples of where this will make a difference.

I support the Bill and support the width of the power that would be given to the courts. However, I also strongly support what the noble Lords, Lord Beith and Lord Black, said about the need for safeguards. The width of the power in the Bill would go beyond powers in other areas, and the two big examples are in relation to legal professional privilege and journalistic sources.

It is not possible to override legal professional privilege in the ordinary investigation of crime, but under this power it would be. As the noble Lord, Lord Ramsbotham, said, the power already exists in Scotland. There is no evidence that it causes a problem in Scotland, although I note that the noble Lord said, I think, that there has only been one application under it in Scotland. We need to address in Committee whether there need to be safeguards in the Bill, in particular that the judge, in considering whether to make an order, should have specific regard to the extent that legal professional privilege should be placed in the balance—not because a judge would not do that but because by putting it in the Bill the judge would have to especially think about and refer to it, and be aware that there would need to be a reason if he or she was going to override legal professional privilege. The justification for the power being so wide is that, where somebody is in prison and may be wrongly convicted, exceptional powers may be required.

The second area where we may need to look at putting something in the Bill is in relation to journalistic sources, which the noble Lord, Lord Black, referred to. The courts very recently, in R (David Miranda) v Secretary of State for the Home Department, said that in order to protect people’s rights to freedom of expression, the freedom of the press and the provisions under Article 10 of the European Convention on Human Rights, there needs to be a power that journalistic sources should only be required to be handed over to the state where there is a prior judicial process that can balance the interests of justice—for example, whether a miscarriage of justice has been caused—against the possible “chilling effect” of making an order for the disclosure of journalistic material. The argument was that, if a court can override protections of confidentiality —the Miranda case goes beyond sources—that would have a chilling effect on journalism. Interestingly, in this particularly area, it is journalistic activity that very often is the beginning of the process by which miscarriages of justice are identified.

The noble Lord, Lord Black, referred, in my view correctly, to the special provisions of Section 9 of the Police and Criminal Evidence Act, which specify that an order which may involve the disclosure of journalistic sources can only be made after an inter partes hearing before a Crown Court judge. As I understand it, an order under the new Section 18A of the Criminal Appeal Act 1995 proposed in this Bill can only be made by a Crown Court judge—so the first bit is satisfied—but there is no express provision in relation to the need for an inter partes hearing, as there is under Section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act. I may be wrong in saying that is the best way to deal with this, but again there needs to be some provision in the Bill to deal with it. I do not believe for one moment that there will be dissent around the House as to how we do it or that it will delay the Bill, but it is important that that matter be dealt with.

I will say only in passing that in the incredibly helpful notes on the Bill prepared by the Ministry of Justice, which are in every single respect excellent, paragraph 15 on compatibility with the European Convention on Human Rights says:

“As this is a Private Member’s Bill, no statement under section 19 of the Human Rights Act 1998 is required. Nevertheless, the Government considers the provisions of the Bill to be compatible with the Convention rights, including the right to respect for private life under Article 8, the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 and the right to a fair trial under Article 6”.

However, there is no reference to Article 10, which was specifically referred to in the Miranda case. I am absolutely sure that this was not because the department did not consider it, but it would be worth while to hear what its views are in relation to that.

I conclude by strongly commending the Bill to the House. It will have the support of the Labour Party in its passage.

Office of Lord Chancellor (Constitution Committee Report)

Lord Falconer of Thoroton Excerpts

Tuesday 7th July 2015 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I join everybody in congratulating the committee of the noble Lord, Lord Lang of Monkton, on the excellent report that has been produced. I also join those who said that it is a very serious report. I believe it to be a serious report because it expresses incredibly clearly and well what the reforms in 2005 were seeking to achieve in relation to the continuing role of the Lord Chancellor.

I compliment all who have spoken in the debate. I will mention my noble friend Lord Beecham, who emphasised the importance of Newcastle to this and, in addition to his point about the Geordies’ role, the importance of speaking justice to power.

I ask the Minister to answer specifically the three incredibly important questions that the noble Lord, Lord Lester of Herne Hill, enunciated with enormous clarity.

I agree with the noble and learned Lord, Lord Woolf, that the Lord Chancellor now should—he emphasised the word “should”; he was not saying that he necessarily did—play a critical role in the defence of the rule of law.

The noble Lord, Lord Crickhowell, did not appear to me to be Pooh Bear in the questions that he asked. Like many noble Lords, he said that the response of the Government fell well short of what was expected in relation to a report of the significance of this one. He hoped—this view was widely shared around the Chamber—that the new Lord Chancellor would do a lot better than his immediate predecessor in fulfilling his role.

The noble and learned Lord, Lord Phillips of Worth Matravers, said that the Government’s response showed unwarranted complacency—I took that to mean that he thought that the way that Mr Grayling had answered the questions indicated that he thought the rule of law was safe under the current arrangements. If Mr Grayling thought that his attitude as Lord Chancellor indicated that it was safe, I took the noble and learned Lord, Lord Phillips of Worth Matravers, to mean that it most certainly was not.

I share the grief of the noble Lord, Lord Lexden, at being off the committee after three years. I particularly enjoyed his reference to Lord Kilmuir, who, upon being fired, was told that it was easier to find cooks than Lord Chancellors. I can think of no Lord Chancellor who more deserved that remark than Lord Kilmuir. Many of you will recall that Lord Kilmuir was Winston Churchill’s second Lord Chancellor. His first was Viscount Simonds. When Winston Churchill became Prime Minister for the second time, he said that he wanted Asquith’s son to be the Lord Chancellor. He summoned Asquith’s son, as the repayment of a political debt to his father, and asked him if he would like to be Lord Chancellor—to which Asquith replied, “Not on your nelly, it is much too much hard work—why don’t you try my friend Simonds?”. So Winston Churchill did, not knowing the man. He appointed him Lord Chancellor and then came a political difficulty; he wanted Maxwell Fyfe, who was Home Secretary, to become Lord Chancellor. He summoned Maxwell Fyfe and said, “I don’t want you to be Home Secretary any more, I want you to be Lord Chancellor—would you mind telling Simonds that his time has come to an end, I don’t really know the man?”. So for Kilmuir to complain about the comment that it was easier to find cooks and to complain about the way that Macmillan treated him was a little bit rich in light of what happened to Viscount Simonds.

I agree with the noble and learned Lord, Lord Cullen of Whitekirk, that the duty to defend the rule of law imposed on the Lord Chancellor extends well beyond simply defending the justice system. The noble and learned Lord did the House a service in indicating the three parts of the Constitutional Reform Act that imposed the duty on the Lord Chancellor: Section 1, Section 2 and the oath.

The noble Lord, Lord Norton of Louth, is right that the constitution works not just in relation to its specific terms but in relation to its culture. I can indeed confirm to the noble Baroness, Lady Kennedy of The Shaws, that I did not have a secret passion to be the Prime Minister or the Chancellor of the Exchequer—which, as she said, all Lord Chancellors before the change indicated.

The scope of the duty of the Lord Chancellor is the key point in the report, along with the Lord Chancellor’s role in relation to constitutional affairs. The reforms in 2005, which were criticised by the noble Lords, Lord Lexden and Lord Norton, and the noble Baroness, Lady Kennedy, were necessary because it was no longer maintainable for the chief judge in the final court of appeal also to be a Cabinet Minister—because the final court of appeal in our country habitually was dealing by 2005 with issues about the conduct of the Government. You could not have a leading member of the Executive also being chief of the final court of appeal determining whether the Executive had gone beyond the limits of legality. The reforms were necessary. As the noble Baroness, Lady Kennedy, acknowledged, it was right that there should be a Judicial Appointments Commission, that a Supreme Court should be created and that the Lord Chancellor should cease to be the head of the judiciary.

The consequence—which was expressed repeatedly in the course of the Bill through this House—of removing this very big judicial figure from the centre of government would be a potential vacuum where the protector of the rule of the law and the constitution had previously been. The Constitutional Reform Act 2005 faced those fears head on and addressed them—the noble and learned Lord, Lord Cullen of Whitekirk, mentioned the way in which it did. The office of Lord Chancellor remained after the passage of the Act. The Act expressly provides that the office retain its role in relation to the rule of law within the Executive. Noble Lords have identified what that role was, and it was preserved. There was an inevitable uncertainty, because you could never be precise about it, but it was specifically preserved. The Constitutional Reform Act places a solemn burden of respecting the rule of law and ensuring a properly functioning and resourced justice system. Finally, the Act imposes on the Prime Minister a duty to appoint only someone who is up to the job of discharging those functions. That is what Section 2 amounts to.

Section 17, which sets out the Lord Chancellor’s oath, states that the Lord Chancellor has to swear an oath to,

“respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.

It was agreed at the time that the Act went through in 2005 that the oath imposes a higher duty than day-to-day political advantage. Parliament envisaged the Lord Chancellor being a departmental Minister, with all the political clout that that brings but with special added responsibilities and special qualities. It also expressly envisaged that, as and when necessary—and it would be exceptional—the Lord Chancellor would not be bound by collective responsibility when upholding his duty to protect the rule of law. The Act specifically envisages that there will be times when he is in effect freed from the obligation of collective responsibility.

What is the content of his protector role? It has three elements. First of all, it means making sure that judges are properly protected in their independence. That means, as the noble Lord, Lord Lester, indicated, that they are not put under any undue pressure and are properly resourced in fulfilling their role. Secondly, it means that the Lord Chancellor has an especial role to ensure that the Government of the day comply with the rule of law and with constitutional principle. That means that where the Lord Chancellor is aware that the Government either are engaged in something that is an habitual breach of the law or are going to fail to comply with the law in the future, he has a role to use his authority to stop that occurring.

One of Lord Bingham’s eight principles of the rule of law is that the law must afford adequate protection of fundamental human rights. The current Lord Chancellor, in a speech he made in the Commons on the proposals that are being made in relation to human rights, in my respectful submission, failed in two respects to comply with his duty in relation to the rule of law. First, he appeared to suggest that it was possible to not give effect to the whole of the European Convention on Human Rights and yet remain within the convention. Secondly, he appeared to be suggesting that it was possible to change some of the elements of the human rights protection currently provided—he did not indicate how—on the basis of what the Government, in effect the Executive, thought it appropriate to call human rights. If you have a situation where the Government themselves define human rights, there is inadequate protection of fundamental human rights.

The third obligation—the first being to protect the independence of the judiciary and the second to procure the protection of the rule of law—is that the Lord Chancellor must ensure that there is a functioning justice system that includes people having the right to have their legal rights vindicated. That means that there must truly be access to justice. Access to justice requires ensuring that all who need it have access to the courts and to legal advice where it is necessary to ensure that there is a level playing field. It also requires a usable means of challenging the actions of the Executive, including in particular proper access to the remedy of judicial review.

Clearly, a delicate balance must be struck for every Lord Chancellor. He or she cannot act merely as a lobbyist for the legal sector. In these straitened times, public policy requires cuts and efficiencies in spending on the courts and on legal aid, and the courts cannot simply stand back and watch the rest of the public service tighten its belt without some sacrifice themselves. But in attempting to strike a balance, it is critical that the Lord Chancellor accepts and understands his especial responsibility in ensuring that there genuinely is access to justice.

In the first speech made a couple of weeks ago by the Lord Chancellor and Justice Secretary in respect of access to justice, he spoke warm words but failed to address the problem that has been repeatedly identified in the justice system now, which is that there is no level playing field when it comes to access to justice.

So I submit that there are three elements to the rule of law which the Lord Chancellor has to protect: defending the independence of the judiciary; ensuring that the rule of law is complied with, and ensuring that there is proper access to justice.

Finally, I turn to the constitution. Under the previous Government, responsibility for the constitution moved from the Lord Chancellor’s Department to the Deputy Prime Minister. When the great constitutional drama of the last Parliament occurred—the defence of the union in the face of what was happening in Scotland—the Government were lamentably unprepared for what happened. Their response was very second rate. I do not know the extent to which that was caused by the fact that there was an attenuated constitutional department in the Cabinet Office that had been wound down quite dramatically after the Deputy Prime Minister’s initial range of constitutional reforms had run into the sand. It is the consequence of there not being a permanent home for the constitution in government.

If in the Lord Chancellor’s Department there had been expertise stretching back over a long period, we would not have had the situation that led to the way in which the Prime Minister responded on the morning after the referendum. We would not have the situation that is going on in the other place now where a fundamental change to the constitution is taking place apparently on the basis of a vote on amendments to Standing Orders in the Commons. I note that this very afternoon the Government have abstained, and so the House of Commons has just voted that the process by which English votes for English laws is being introduced is not acceptable.

I very much hope that the consequence of that will be that the Government will pause and think again rather than having English votes for English laws introduced on the basis of 11 days’ notice with no White Paper, Green Paper or any other prior consultation. The importance of keeping constitutional affairs in one place—under the tutelage of the Lord Chancellor—is that that sort of thing would not have happened in the past. I invite the noble Lord, Lord Faulks, to indicate what the Government’s response will be to a situation where there is no collective memory, no permanence and no accepted home where constitutional affairs are dealt with.

--- Later in debate ---

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

[Lord Falconer of Thoroton]

Before the Minister moves on to that, can he identify whether he accepts the central recommendation of the Constitution Committee that the Lord Chancellor has an especial role in protecting the rule of law, or does he, like Mr Grayling, think that the Lord Chancellor has no special role that is any way different from that of the Secretary of State for Health or the Secretary of State for Education?

[Lord Faulks]

The Lord Chancellor’s role and his oath, as the noble and learned Lord said, is defined by the Constitutional Reform Act 2005. Clearly, his role is the same as other Ministers’ but must be larger than theirs. Its precise ambit may be a question of some debate but clearly he would regard, as indeed he said in the Legatum Institute talk, that he has a greater and particularly specific role in relation to the rule of law.

I was dealing with the oversight of the constitution. The committee recommended that, “a senior Cabinet minister”—in its view, most appropriately the Lord Chancellor—should have responsibility,

“for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms”.

The Prime Minister, of course, has overall responsibility for the constitution. The Cabinet Office has oversight of constitutional policy and has done since 2010. The Chancellor of the Duchy of Lancaster, Oliver Letwin, oversees co-ordination of the Government’s constitutional reform programme and is supported by two Ministers and officials from the Cabinet Office constitution group. The Chancellor of the Duchy of Lancaster works in close collaboration with the Prime Minister and other relevant Cabinet Ministers, including the Lord Chancellor, the Attorney-General, the Leaders of the House of Commons and the House of Lords, and the Secretaries of State for Scotland, Wales and Northern Ireland. This senior ministerial oversight reflects the importance that the Government attach to their constitutional reform programme.

In answer to the noble and learned Lord, I am not aware of any precise protocol, but it is clear that there is a great concentration within the Cabinet Office, in close collaboration with the other offices.

Assisted Dying Bill [HL]

Lord Falconer of Thoroton Excerpts

Friday 16th January 2015 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, it is not a question of sympathy. As the noble Lord well understands, it is a question of not committing a future Government as to how they would respond to this position.

It might help if I clarify that the scope of civil legal aid is set out in the LASPO Act 2012. It provides that civil legal services are to be made available subject to satisfying the means and merits and the matter or type of case being within the scope of the civil legal aid scheme. In order to bring a matter within the scope of the civil legal aid scheme, an amendment to Part 1 of Schedule 1 to LASPO would need to be made. The power to make such an amendment by way of affirmative secondary legislation is already set out in LASPO. It would therefore be unnecessary and not usual practice for separate provision to be made in other primary legislation to provide such a power.

That is the position quite apart from the question of exceptional funding, which is concerned, as I said when we were last in Committee, with matters where it could be said that there was a violation of the convention right or, alternatively, a violation—although I do not think it is relevant—of some provision of EU law. That remains an uncertain provision, but it could potentially be relevant, so that is my answer.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for his clarification saying, in effect, that there is already power to make sure that this is covered so far as legal aid is concerned under existing legislation. Three points are worth making. First, the key point is that anyone in the situation of considering an assisted death should feel that they would have access to proper legal advice so that the application would not appear to be a burden. Secondly, I completely agree with the noble Lord, Lord Phillips of Sudbury, that it is difficult to identify what an individual case might cost and involve. Some cases will involve no opposition, it being completely agreed and clear that this is the right course to take but nevertheless it should still go to the High Court. It would be very helpful to have a lawyer to help the family through that process. Others may involve more. I suspect that most cases would be on the uncontested end of the spectrum, but we have to provide for the other end of the spectrum as well.

I submit that the appropriate course to take would be that this is covered by legal aid. We should also try to build in easy access in hospitals and with doctors so that people know where they can go to get this help. The key thing is that the family should know that if they need legal help they can get it, it can be obtained easily and quickly and if they cannot afford it it will not cost them anything. I agree in principle with the approach that the noble Lord, Lord Phillips, is taking. I suspect that it will not need an amendment to the Bill.

--- Later in debate ---

[Lord Faulks]

In this context, it is for the Committee to consider the appropriate term. I decline to go any further.

[Lord Falconer of Thoroton]

My Lords, this has been a very impressive debate. I completely agree with what the noble Lord, Lord Faulks, said about it being in the right tone.

I shall make three points. First, I acknowledge the speech by my noble friend Lord Cashman, which was of immense power and immense pain. He made the incredibly important point that in the circumstances in which he found himself, he was very clear about the distinction between assisted dying and suicide. I understand the difficulty and the pain that must have been involved in making that speech. All Members of Committee appreciate that.

Secondly, there are two separate groups in this group of amendments. One group is those amendments which wish to change various bits of the wording of the Bill to refer more often to the word “suicide”. Not one of those points has been pursued in detail except for the point made by the noble Lord, Lord Mawhinney, as regards Clause 4, in which he sought to suggest that the use in the draft Bill of the word “self-administration” was in some way euphemistic. It was not. It was used because a vital brick in the Bill is that the person has to do the last act to himself or herself. They have to do it to make clear that it is not euthanasia. That is why that word is there; it is not in any way intended to be euphemistic.

As regards the other matter, the Title of the Bill—which is the key point in the debate—I have thought very carefully about what the Bill should be called. I am always wary when I think to myself, “What will other people think I mean?”. When I hear noble Lords speculating about what the public may think, I am always rather wary; all we can do is to go by the words.

I have used the phrase “assisted dying” for three reasons. First, it is accurate. The purpose of my Bill as drafted is to:

“Enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life”.

That is the wording of the Long Title. Nobody in this debate has questioned its accuracy. What is the right way to convey a Long Title in a short title? In my view the right and most accurate way is by using the words “assisted dying”. That is why, after very considerable thought and having discussed it with people—not just people in favour but also lawyers—I wished to convey accurately what the position was.

The second reason is that to call the Bill “the Assisted Suicide Bill” would, as a matter of law, give the wrong impression. The words “assisted suicide” would give the impression that assistance could be given in any category of suicide. The third reason was that touched upon by the noble Lord, Lord Purvis, who said that those engaged in helping people as regards suicide are very antipathetic to the words “committing suicide”. There is a moral opprobrium attached to it. For those three reasons I decided that the right wording was “assisted dying”. I urge the Committee to accept the Title as it is.

[Lord Trimble (Con)]

My Lords, my comments would have been most apposite when I tried to intervene earlier. At that point, the noble and learned Lord was quoting from the contribution from my noble friend Lord Mawhinney, who referred to Clause 4. I observe that that clause talks about prescribing,

“medicines for that person to enable that person to end their own life”.

Does he agree with me that the worst euphemism here is the use of the word “medicines”?

[Baroness O’Neill of Bengarve]

My Lords, we have had a very interesting debate on the first amendment in this group, which is very limited. I observe that the Bill does not alter the law on suicide. Suicide is not a crime. If your Lordships think about it, if suicide is successful, you cannot prosecute.

[Lord Falconer of Thoroton]

It does alter the law on suicide because it gives a specified defence.

[Baroness O’Neill of Bengarve]

It alters the law on assisting suicide, and it will be for the Committee, during the discussion of the amendments that lie ahead, to determine whether it alters that law in an effective and secure way. That is not the issue here. The issue in the first amendment is simply: what is the Bill about? I hope that one of these days your Lordships’ House will consider a Bill on assisted suicide. As many noble Lords have said, that involves a much wider category of issues than this particular issue. We should not pre-empt a possible Bill in which we gave expression to compassion and care for the dying with this very specific Bill, which is about something rather different. I understand the reservations of the proponents of the Bill. They feel that this is an unpleasant word to have in the Bill more prominently, but it also represents the particular purpose of the legislation more accurately, and I wish to test the opinion of the Committee.

--- Later in debate ---

[Lord Faulks]

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

[Lord Falconer of Thoroton]

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

[Lord Carlile of Berriew]

I have a serious question for the noble and learned Lord, which I am sure he will answer seriously. The thrust of what I am saying in my amendment, with my noble colleagues who have signed it, is that the gateway that is provided in Clause 2 should be subject to two doctors—doctors who can be shown to have some considerable knowledge of the person’s case. Is he willing to accept that principle?

[Lord Falconer of Thoroton]

I do not accept it in the way that the noble Lord has formulated it. I say that there should be two doctors who have properly, on good evidence, considered the case. It may well be that neither of those doctors has been engaged in the long-term or even short-term care of the person. But I would be satisfied with the gateway involving two doctors who have gone through a proper and rigorous process, and I disagree with the noble Lord when he says that they have to have known the person for six months. Indeed, I do not think he is even saying that because registration over a six-month period would not necessarily involve any contact whatever with the general practitioner.

[Lord Carlile of Berriew]

I am grateful to the noble and learned Lord, who has made a helpful response, up to a point. If the Bill were to go further, would he be prepared to enter into discussions on the clear basis that Clause 2 would have to be amended to ensure, first, that there were two doctors involved in that gateway—whatever the gateway is, because we are going to consider another group shortly that is relevant—and, secondly, that it should be shown that at least one of those doctors has had detailed past consideration of the patient’s case? It seems to me that that sort of measure is the only way of ensuring that we do not have a Shipman-type situation.

[Lord Falconer of Thoroton]

The first point about the two doctors is dealt with in Clause 3, because the second doctor has to certify that he is content. The noble Lord is getting frightfully agitated. If he looks at Clause 3, he will see that it requires certification by a second, independent doctor.

Secondly, the noble Lord asked whether I would enter into discussions in relation to putting in the Bill that one of the doctors has had to be involved in the care of the patient. No, I would not because I think it is satisfactorily dealt with in the Bill as it stands, for the reasons I have indicated. I will answer the noble Lord, Lord Jopling, first, and then go to the noble Lord, Lord Maginnis.

[Lord Jopling (Con)]

I am concerned very much about this problem of doctors for hire. Does the noble and learned Lord not agree that there is another way, on top of the ones he has described, of dealing with this problem? If he looks at my Amendment 36, he will see it suggests that no doctor should sign a declaration of this sort more than once every four years. I am intent on establishing the principle; whether it is four years or less, I am perfectly happy to have discussions and hear what other people say. But surely to deal with the problem of doctors for hire you could put a limit on the frequency with which a doctor could sign these declarations. The noble Baroness, Lady Murphy, who I believe is not here today, has put down another amendment, Amendment 37, which proposes a timescale of very much less—I think that, for one of the doctors, it is once every two months, which I think is far too frequent. I would be perfectly happy on Report to put down another amendment, if the noble and learned Lord would give it a fair wind, which would put a limit—let us say two or three years—on how often a doctor could sign such declarations, which, after all, will be pretty rare events.

[Lord Falconer of Thoroton]

I am very happy to discuss with the noble Lord the idea of there being some limit. I have thought carefully about the limit issue. My inclination is against a limit for the following reason: that there might be doctors—for example, those engaged in the treatment of particular sorts of cancer, covering a particularly wide area of the country—for whom, if the Bill is passed, a limitation of the kind that the noble Lord has suggested, whereby somebody could not countersign a declaration if they had signed one in the previous four years, does not sound appropriate. However, I am completely engaged on how one seeks to deal with the issue of doctors for hire. I would be more than happy to discuss it, but I do not want to give a misleading impression. My current thinking is that it would not be a good idea to put a limit on it.

[Lord Maginnis of Drumglass (Ind UU)]

I was to some extent motivated to intervene at this stage because the noble and learned Lord alluded to the noble Lord, Lord Carlile, as being “agitated”. I thought, “That’s a word that perhaps the noble and learned Lord, Lord Falconer, would consider”, because it appears that, as we have moved through this debate, he has moved more and more to provision for the exceptional case; for example, if somebody does not have a doctor, or they do not have a doctor for a certain length of time. No good legislation should be brought forward on the basis of extraordinary cases. If those matters arise, the legislation can be amended, but I am very worried that we are arguing a flawed case based on extraordinary circumstances that may arise.

[Lord Falconer of Thoroton]

I could not agree more with the approach that underlies what the noble Lord, Lord Maginnis, has said. That is why, although I accept and admire the spirit in which it is offered, I do not think that it is a sensible amendment, because it would lead to so many situations that would then not have been covered by a Bill which, on this hypothesis, had been passed. It would therefore be a very bad idea to accept it. I acknowledge and accept the idea that you should not pass a Bill that then leads to problems, which is exactly what the amendment would do. However, I anticipate that the noble Lord would say that he had the precise reverse in mind.

[Lord Cormack]

I am most grateful to the noble and learned Lord for giving way, and particularly for the references that he has made to the points made by the noble Lord, Lord Empey, my noble friend Lord Jopling, and me. In response to the noble Lord, Lord Jopling, he understandably poured some cold water on the four-year limit, but would he accept that a limit of a reasonable time would help allay the fears that my noble friend Lord Jopling, the noble Lord, Lord Empey, and I all have?

[Lord Falconer of Thoroton]

As I indicated to the noble Lord, Lord Jopling, I am more than happy to talk about it. The example of the cancer specialist or the motor neurone disease specialist makes me instinctively, having considered it quite carefully, against the idea of any limit, but I am more than happy to discuss it.

[Baroness Cumberlege (Con)]

My Lords, I listened with great care to what the noble Lord, Lord Empey, said. The noble and learned Lord has been very helpful in saying that he will negotiate with people and talk further about this. Could he not think a little more widely, because there is real concern about the medical profession as a whole being involved in this? I am also concerned about the nursing profession and other clinical specialists who could be involved. As I read the Bill, it makes room for that.

Professionalism is such an important element in the work of all those people who work in the NHS. Professionalism is indicated by the values, behaviour and relationships that underpin the trust that the public have in doctors, nurses and other clinicians. One reason why I am against the Bill is that I think it is so damaging to the medical and other professions. I have listened to my noble friend Lord McColl, the noble Baroness, Lady Finlay, and others. The commitment of the people in that service is outstanding. We know that doctors are the most trusted of all the professions. The trust is there because we know the intention of those people in treating us. We know that they come committed to cure, to treat, to alleviate pain and to be compassionate. The Bill goes against that.

Does the noble and learned Lord, Lord Falconer, not think that we could be a bit more imaginative? Building on the amendment of the noble Lord, Lord Pannick, which was passed at the previous Committee sitting, could we not have a person appointed by the court to carry the drug, medicine, dose or poison—whatever you want to call it—and actually administer it? If a nurse or a doctor finds that the patient cannot quite administer it, because they are compassionate people, will they not help that person to do it? Are they not then in real danger of cutting across the whole tenet of the Bill?

Perhaps the noble and learned Lord will talk to some of the rest of us. I have tabled amendments to enable that to happen, but we will probably not get to them today. Will he not widen his vision of the Bill to see whether he can protect the medical, nursing and other professions by building on the amendment of the noble Lord, Lord Pannick, to have a person appointed by the court?

[Lord Falconer of Thoroton]

I could answer that, but the noble Baroness has tabled a later amendment. I am not at all unsympathetic to what she is saying—although I think that it is adequately dealt with by the Bill—but I do not think that it is appropriate to be taken into that debate when we are dealing with other amendments. I am sorry, but I do not think that that is an intervention to which I should appropriately respond, because other people have made contentions in the course of the debate. With respect, to hive off into the noble Baroness’s later amendment does not seem a sensible way to conduct our business. I am sorry.

[Baroness O’Loan]

I should like clarification from the noble and learned Lord. I think he said that Clause 2 required two practitioners, but on my reading it requires only one. If there is one practitioner and a person is diagnosed with a terminal illness, the terminal illness is, if you like, the gate into everything else in the Bill. That I have a terminal illness allows everything else to follow. If one doctor diagnoses a terminal illness, there is the possibility that that doctor may do so at the behest of relatives. The motives of those relatives may be benign or malign. If the person gets a diagnosis of that kind from a medical specialist, that may change their whole perspective on life. The mere fact that someone has said to them, “You are terminally ill. You are going to die in six months”, when that has not been said before, may lead them to think, “Perhaps I should seek assisted suicide”.

That may be quite an unintended consequence of limiting this, but at least if we have two doctors, in some form or another, as suggested by the amendment of the noble Lord, Lord Carlile, surely there would be some protection. As I read the Bill as it stands, there is very little protection for the vulnerable person who is lying in bed and seeking some way to find a way through this. Terminal illness and serious pain have a number of effects. One is to cloud judgment and another is to sap the zest for life. That zest, as the noble Baroness, Lady Finlay, and others have said, may well be restored by palliative care, which relieves the pain, as the noble Lord, Lord McColl, has said. This is such an unsatisfactory provision that I should like the noble and learned Lord to confirm whether I am right.

--- Later in debate ---

[Lord Falconer of Thoroton]

I think the noble Baroness is wrong. I thought that I had said Clause 3 but maybe I did not. Clause 3(3) requires two doctors to sign the person’s declaration that the person,

“is terminally ill … has the capacity to make the decision to end their own life; and … has a clear and settled intention to end their life which has been reached voluntarily, on an informed basis and without coercion or duress”.

If I inadvertently said Clause 2, I meant Clause 3 and I apologise. It involves two doctors. We could go into the debate about vulnerability again, but with regard to clarification on whether two doctors are required, I think the Bill is utterly clear.

[Baroness O’Loan]

I just want to understand which clause we are debating. I thought we were debating Clause 2, which refers to a registered practitioner. As I said, I know that there are other safeguards that the noble and learned Lord is trying to write into the Bill, but the reality is that the realisation of this clause in a person’s life may have significant unintended consequences. I simply wanted to ask the noble and learned Lord whether there is one doctor in Clause 2 or two.

[Lord Falconer of Thoroton]

It is obviously my fault for not properly explaining this. As I understand the noble Baroness’s point, she is asking whether only one doctor has to decide whether the person is terminally ill.

[Baroness O’Loan]

No, I am talking about the point at which we open the gate and make the Bill apply. I know that in subsequent situations the process develops. I think that one of the weaknesses of the Bill is that the processes are kind of confused. At this stage of the Bill, though, is there one doctor who will say to the person, “You are terminally ill, with six months to live”, so that all other discussions can then take place and you can move towards seeking the declarations and that sort of thing? I just thought it might be helpful to be clear in my mind what we are talking about.

[Lord Falconer of Thoroton]

That is a fair point. The process is that one doctor says the person is terminally ill. The patient declares that they want to take their own life and then the second doctor has to confirm both the terminal illness and the firm and settled intention, voluntariness and capacity. I am not quite sure what further point the noble Baroness is making. She is right that Clause 2 refers to the initial doctor and Clause 3 refers to the second, but the process involves two doctors. I can take it no further than that, I am afraid.

The next point that was raised about the safeguard was the suggestion that we reduce the period from six months to six weeks. I completely accept that there are uncertainties from time to time about diagnosis. A judgment has to be made as to whether someone is terminally ill and may be reasonably expected to die within six months. I do not believe that that is an impossible task for a doctor to embark upon. As the Minister said, a judgment has to be made on what the right period is. I anticipate that the mood of the Committee is that six weeks is much too short. As a matter of judgment, six months feels right after hearing considerable evidence in the commission, and it also feels right having heard the debate just now.

The fact that diagnoses and predicting the length of time that you have to live are difficult—they are difficult whether the amount of time is six weeks or six months—does not lead me to believe that the Bill should not go forward, or that we should vacate the field in giving people that right. As the noble Lord, Lord Berkeley of Knighton, said, in this area we are not dealing with certainty. The question is whether, in the absence of certainty—and no provision can give certainty—we should be saying that because you cannot have certainty you cannot have the Bill. In my view, the right conclusion is that even though you cannot have certainty—everybody agrees with that—you should nevertheless have the Bill. Having listened very carefully to the choice between six weeks and six months, and obviously having considered something in between, six months appears to be right in relation to this.

[Baroness Finlay of Llandaff]

I am grateful to the noble and learned Lord for having finally got on to the timeframe issue and for his acknowledgement that, on a balance of probabilities, things are more likely to be accurate within a shorter timeframe than at six months. Does he accept that it might be worth considering uncoupling the time in which the discussions can occur from the time within which the prognosis indicates that it is eligible for the lethal drugs to be taken to the patient? That was the question that I asked the noble Lord, Lord Empey, and on which the noble Baroness, Lady Symons, came in, but the noble and learned Lord has not answered that question at all.

[Lord Falconer of Thoroton]

I apologise to the House for taking so long to get on to the point about six months versus six weeks. I very carefully considered whether one should say that, once you have a diagnosis of six months to live, you should be able to have the discussions but only be able to take the drugs within six weeks. I am strongly against that.

[Baroness Finlay of Llandaff]

I—

[Lord Falconer of Thoroton]

If I may finish, the reason I am against it is that once the diagnosis is given by the doctors, there is a process that will take a considerable time, and that once the court has approved the process and said that somebody should do it, it should be for them to decide when they do it. It would be an unsatisfactory and, I suspect, an unenforceable process to have to go back and get a doctor to say that you have six weeks or less to live. I thought carefully about that point before it was raised. It is not referred to in any amendment and I assumed that nobody had properly considered it. I am against it.

[Baroness Finlay of Llandaff]

If I may come back on that, does the noble and learned Lord recognise that those discussions are currently being had with patients, day in and day out, up and down the country? It is not as if the Bill, as some noble Lords implied, would be the way in which people start talking about their dying because it should be a routine part of clinical practice, as laid out in the GMC guidance. However, I do not think that he has yet answered my question on whether there would be merit in uncoupling those discussions and that process from the time at which the drugs were delivered. If I hear him right, he is saying that when you are in that zone of complete uncertainty and could toss a coin on it—you might die within six months or, as the noble Lord, Lord McColl, said, within three years; indeed, in the case of some of my patients you might die within 10 years, as it happens—the fact that the doctor has mistakenly said that he believes you are terminally ill would suddenly give the message that you should be considering having an assisted suicide. That would probably start to trigger these discussions. That is the danger in not uncoupling them.

[Lord Falconer of Thoroton]

I thought that I had answered the question but I will answer it again. A doctor has concluded that he or she reasonably believes that you have six months or less to live; another doctor has confirmed the diagnosis; and the courts have concluded that it is an appropriate case for an assisted death. Thereafter, my view—I should be clear about this—is that you should be entitled to have an assisted death as prescribed by the Bill. I am therefore against the decoupling of the beginning of the process from the time at which the drug could be taken.

The noble Baroness says that these discussions are taking place at the moment. No, they are not; the discussions taking place are about how somebody wishes to die. It does not involve discussions about assisted dying in the context of my Bill because that is not permitted at the moment, so this is dealing with a new situation. My clear answer to her is that I am not in favour of the decoupling. My proposition is that if two doctors certify and the court says yes, once that process has been gone through, it is for the patient to decide the moment he or she takes the drug, and there should not be another process for a doctor to certify that the patient has six weeks or less to live.

I shall deal with the other points raised in this group. First, for reasons I just cannot understand, the noble Lord, Lord McColl, and the noble Baroness, Lady Finlay, suggest that where the Bill states,

“reasonably expected to die within six months”,

or less, the word “reasonably” is deleted. That seems unwise. In my view, it is appropriate that a doctor giving such a diagnosis has a proper and reasonable basis for doing so. I am against that change.

In the context of the amendment moved by the noble Lord, Lord Carlile, the noble Baroness suggests we refer to a “licensed” practitioner rather than a “registered” practitioner. Although I do not agree with the amendment moved by the noble Lord, Lord Carlile, the point that the noble Baroness, Lady Finlay, is making appears to me to be a good one. We should discuss, outside the Chamber, the precise language. The noble Baroness, Lady Murphy, has an amendment that puts the language in a slightly different way. We are all concerned to allow this to be done only by doctors who have the appropriate qualification and are in practice. I am happy to agree an amendment that reflects that.

The noble Baroness, Lady Campbell, made a number of powerful submissions in relation to how this affects disabled people. The noble Baroness, Lady Brinton, responded to them and made it clear that disabled people can have different views about the adequacy or otherwise of the Bill. I was very struck by the reference to “The Theory of Everything” and Stephen Hawking, who is, in fact, in favour of some process of assisted dying.

The underlying anxiety that has been expressed to me by disabled people is that if we pass an assisted dying Bill, we in some way devalue the lives of disabled people and put them more at risk. I do not believe that we devalue disabled people in any way by passing this Bill. I believe it is incredibly important that disabled people have exactly the same options as everybody else when they are terminally ill. I also believe that the safeguards in the Bill are much stronger than the existing safeguards in relation to decisions about treatment. I completely echo the point that the noble Baroness, Lady Brinton, made: this will not be forced on anybody. It is an option to be asked for, and even when asked for, it can be given effect only when two doctors have certified that it is appropriate and the High Court of Justice has said that it is okay. Having spoken widely to disabled people, I do not believe that it puts them more at risk than the population as a whole. Although I, like everyone else in the Committee, am very moved by what the noble Baroness, Lady Campbell, said, I do not accept the criticism that she makes in relation to the Bill.

I think I have dealt with all the main proposals. This has been a very worthwhile debate. The areas where I think further discussions would be of value are in relation to the “doctor for hire” proposition and how we properly identify the qualification required for a doctor. In relation to the other proposals, I am broadly against them.

[Lord McColl of Dulwich]

I shall just explain some of the worries that the noble Baroness, Lady Campbell, has.

[Lord McColl of Dulwich]

In a sentence, every time she goes into hospital, they say, “You don’t want to be resuscitated, do you?”. A lot of disabled people have that question put to them. Does the noble and learned Lord think the Bill is going to change that?

[Lord Falconer of Thoroton]

I will take that up. With regard to my Bill, if the situation were reached—the noble Baroness, Lady Campbell, referred to this—that somebody had very low air and decided to take advantage of my Bill, they would have to get two doctors to approve it and the High Court of Justice would have to say yes. That is a very different situation from the one that the noble Lord describes. My Bill gives much greater protection as regards somebody who is asking for death than the situation that the noble Lord describes. It is for that reason that I cannot understand why he says that my Bill might make it worse.

[Baroness Masham of Ilton]

My Lords—

--- Later in debate ---

[Baroness Masham of Ilton]

Can the noble and learned Lord say if he thinks that pressure might be put on some vulnerable people from family members who want to save money?

[Lord Falconer of Thoroton]

The Oregon experience is that that does not happen, but the safeguards—two doctors, and the High Court judge approving it—are in my view sufficient to prevent the sort of abuse to which the noble Baroness refers.

[Baroness Finlay of Llandaff]

I am grateful to the noble and learned Lord for having responded to the question about the qualification of doctors, which is an amendment to the amendment in the name of the noble Lord, Lord Carlile. I will make just a couple of points in response. One is that I am glad to see that the noble and learned Lord recognises that the way the Bill is currently drafted is a problem and that you need doctors with experience, but I wonder how he will achieve that. Clause 3(7) requires, rightly, that the doctor holds an appropriate qualification. However, yesterday the Association for Palliative Medicine published the results of its consultation with its members, which had a very high response rate and showed that only 4% of palliative medicine doctors who are licensed to practice are prepared to have any involvement in this process. Therefore if the conscience clause is to have any meaning, it is something to which we need to return, and I welcome the noble and learned Lord’s commitment to engage in discussions over it. We will come to other amendments later, which I have tabled, on how we might solve the problem, but I do not think that we will get to them today. I beg leave to withdraw the amendment.

Assisted Dying Bill [HL]

Lord Falconer of Thoroton Excerpts

Friday 18th July 2014 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

That the Bill be read a second time.

[Lord Falconer of Thoroton (Lab)]

My Lords, in the last stages of a terminal illness, there are people who wish to end their life rather than struggle for the last few months, weeks, days or hours. Often it is not the pain that motivates such a wish, but the loss of independence and dignity. Those who love them often try to help, sometimes by going with them to Switzerland. Nobody wants assisters who are motivated by compassion to be prosecuted. The courts and the prosecution authorities recognise this impulse and have tried to steer a course between Section 2 of the Suicide Act 1961 and the desire not to enforce it. But the current situation leaves the rich able to go to Switzerland, the majority reliant on amateur assistance, the compassionate treated like criminals and no safeguards in respect of undue pressure. Many people, caring so much for those they leave behind, are dying earlier and alone because they fear implicating their loved ones in a criminal enterprise. They hoard pills or put a plastic bag over their head when they are alone.

It is time for a change in the law, but only a very limited and safeguarded change. Good-quality end-of-life care can alleviate much of the suffering of the dying process and we must continue to strive to improve it. However, a minority of those who are dying, no matter how good the end-of-life care, do not wish to go on struggling. The principle of this Bill is that those who are terminally ill should have choice over how they die, but subject to effective safeguards that prevent pressure or abuse. It would lead not to more deaths, but to less suffering. Disabled or older people without a terminal illness would not be eligible for an assisted death. The Bill does not legalise voluntary euthanasia where a doctor directly administers life-ending medication; rather, it provides that the final act in an assisted death must be taken by a patient who has mental capacity both at the time of the request and at the time of their death.

Oregon’s Death with Dignity Act has been in place for 17 years. It enables someone who is terminally ill to request the option of an assisted death. There has been no evidence of abuse since its inception. Only a small number of patients have an assisted death—fewer than 80 in total in 2013—out of the annual 30,000 deaths in Oregon. Around 40% of dying people who meet the strict safeguards to obtain life-ending medication never use it, simply taking comfort from having the option.

Critics of my Bill cite the voluntary euthanasia laws of Belgium and the Netherlands as an example of the slippery slope. In fact, it is not a slippery slope but a deliberate path chosen by legislators in those countries. From the beginning, they created laws that allowed both dying and non-dying people to be directly helped to die based on a subjective analysis of suffering. The Belgian and Dutch laws provide no evidence of a slippery slope. More accurately, they confirm that the law you enact is the law you get. That is why it is so important that we get it right from the outset. I have built on the Oregon model, but with more safeguards. I reject the Belgian and Dutch approach.

Clause 1 of this Bill enables an adult who is terminally ill to request to be given assistance to end their own life. No other person, including the patient’s doctor, family and partner, is able to initiate the process of requesting an assisted death. Clause 2 defines “terminally ill” and “terminal illness” as applying to a person who is expected to die from a terminal illness within six months.

Clause 3 sets out the safeguards. First, the patient must sign a declaration, witnessed by an independent witness, that it is their “clear and settled intention” that they wish for an assisted death. Secondly, two doctors must countersign the declaration. Before countersigning, the two doctors,

“having separately examined the person and the person’s medical records and each acting independently of the other, must be satisfied that the person—

(a) is terminally ill;

(b) has the capacity to make the decision to end their own life; and

(c) has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.

In deciding whether to countersign the declaration, the two doctors,

“must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available”,

to him or her. These safeguards are set out expressly in the Bill. While the Secretary of State has a power under Clause 8 to issue codes of practice to provide guidance to doctors in discharging their roles under the Bill, the safeguards themselves and the conditions that need to be satisfied before an assisted death can occur are spelt out in the Bill. Those who suggest that the safeguards are not in the Bill are mistaken.

Clause 4 sets out the practical arrangements for providing medicines to enable a terminally ill person to end their own life. The attending doctor would write a prescription for the necessary medication, but it would be delivered only after a 14-day cooling-off period for reflection, or six days if both doctors agree that the person is likely to die within one month. The attending doctor, or another doctor or nurse authorised by the attending doctor, would deliver the medicine at the patient’s request after the period of reflection had passed, check that the person had not revoked or did not wish to revoke their declaration and remain with the person until the medicine had been taken and the person had died, or the person had declined to take it. The person would have to administer the medication himself or herself. If a patient has lost the ability to swallow or finds it very difficult, the Bill makes provision for a syringe driver to be installed. However, it would be illegal for a healthcare professional directly to administer the medication. The final action must always be taken by the patient.

Clause 5 enables health professionals to refrain on the grounds of conscientious objection from assisting a person to die in accordance with the Bill. Clause 12 contains a sunset provision, which would enable the Bill to be repealed by resolution of each House and without the need for further primary legislation after the Act had been in force for 10 years.

The courts have said repeatedly that the current law does not work—most recently, in the Supreme Court a few weeks ago—and have urged Parliament to construct a workable law. The Bill provides for an assisted death in circumstances where there are adequate safeguards to prevent abuse or pressure on those who are terminally ill. There are those who say that you can never be sure about a prognosis of how long someone has to live. Of course, I accept that there can be no certainty. However, whether the issue is assisted death or the decision no longer to treat a patient, the physicians have to do their best. That the prognosis cannot be certain is not a reason for abandoning those who wish this option. Whether the right period is six months will no doubt be addressed in Committee.

Some say that the courts should be involved as an additional safeguard before an assisted death occurs. We should constructively consider that issue in Committee. Others say that the change in the law will place pressure to take that option on those who are dying. I disagree. The numbers will be small—that is the experience in Oregon. The safeguards make clear the exceptional nature of the course. Some say that the current law should just be allowed to continue. They are wrong. Without intending to be, and despite the very best efforts of those who seek to enforce it, the current law provides the option of an assisted death to those rich enough to go abroad; for the rest, it provides despair and often a lonely, cruel death—and no adequate safeguards.

The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, said in his recent judgment:

“A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view”.

Some say that the Bill devalues the lives of those who are disabled and puts pressure on them to take the option of an assisted death. I disagree. The option of an assisted death is available only to those who are terminally ill and is available to the disabled on the same basis as everyone else. While it is for Parliament to reach its own judgment on the merits of the Bill, it is significant that polling suggests that support for a change in the law is just as strong among the disabled as it is in the general population. The general population supports the change at a level of above 70%; among the disabled the level is 79%.

There is a common goal, whichever side of the debate you are on, for a law that shows compassion to the well motivated who help someone to end their life when they already have a terminal illness, but in a way that provides proper safeguards against abuse and pressure. The Lords, working constructively together, can craft such a law. It will then be for the Commons to decide whether that is a law that they are willing to pass. The time for royal commissions and Select Committees has passed. Our work on the Bill will affect so many people’s lives—in the way they die and in being with someone they love as they experience a final illness. I believe that the time has come for change. I beg to move.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, to the usual channels—the noble Baroness, Lady Anelay, and my noble friend Lord Bassam—I express my profound gratitude for arranging a remarkable debate, which has had 133 speakers in one day. The quality of the speeches has been second to none. To those who have expressed support for my Bill, I also express profound gratitude. To those who have opposed it, I express my gratitude for the total lack of venom and the constructiveness with which they have approached the issue.

Today, it is clear that this House is near unanimous in its view that Parliament must now grasp this issue and the Bill must go on to its third stage in this House—Committee. This is an historic day. I thank everyone in the House for the contribution that they have made. After nine hours and 43 minutes of debate, I shall say nothing more than: “I beg to move that this Bill do have a Second Reading”.

Bill read a second time and committed to a Committee of the Whole House.