Assisted Dying Bill [HL]

Baroness D'Souza Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, noble Lords have had many heartrending letters expressing the pain and indignity at the end of life. Equally, we have had letters expressing the fear that passing this Bill would lead to a policy of euthanasia. This brings up the question of what moral framework we might use to arrive at a view. Life is precious, sacred even; we all know that. But to condemn our loved ones, or anyone, to an agonising last few weeks, in circumstances we would not allow our animals to undergo, is to my mind immoral and heartless. Who really would wish to see loved ones of their own suffering the gross indignity of repeated faecal vomiting or, as one letter expressed, howling in pain like a wolf? The question is: are we as a society ready to sanctify suffering by means of sanctifying life?

The Bill has a very limited purview; the safeguards are robust; the choices are humane. It should be an additional option to palliative care. The evidence from countries that already have adopted assisted dying for the terminally ill is not of misuse and enforced decisions by others, despite the often selectively quoted examples. I, like many colleagues, have been struck by the unfairness of the present system. Those who have the financial resources can achieve a release from their suffering by travelling abroad at a cost of several thousand pounds. Those without the resources are compelled to continue suffering. Furthermore, those who have no recourse other than to self-administer drugs to end their lives can experience truly horrific outcomes. One of the most often quoted views of those who support this Bill is that they would not wish to be a burden on the family. None of us would wish to be a burden on our families. This seems a perfectly valid reason for requesting a slightly earlier, but none the less inevitable, death.

I support this Bill wholeheartedly. I accept that it may not have a smooth passage in this or the other place—indeed, it may need several amendments to add protections—but it is a valuable contribution to the public discourse that will allow, in due course, further debate, consideration and eventual acceptance to emerge.

Crime and Courts Bill [HL]

Baroness D'Souza Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Goldsmith]

My Lords, I will speak to all four amendments in this group, which are in my name. Amendments 116A and 116B cover the same grounds. They are really alternatives, and I will explain why. However, the fundamental point is that they deal with the provision in the Bill that the,

“amount of any financial penalty agreed between the prosecutor and”—

the company—let us call it that—

“must be broadly comparable to the fine that a court would have imposed on”—

the company—

“on conviction for the alleged offence following a guilty plea”.

I firmly believe that that is a wrong provision. It removes, first, the incentive for an agreement to be made. It is odd, because the Government put forward the limitations on the deferred prosecution agreement on the pragmatic grounds that it is often difficult to prosecute these offences. Therefore they want to have an alternative system which people suspected guilty of financial or economic crime will be prepared to accept. Well, they will be prepared to accept it if the offer is acceptable. There is another point to which I will come, but this provision says that if you do the deal you can only do it on the basis of the same financial penalty. Bear in mind that we are dealing with companies and commercial organisations which cannot be sent to prison, so it is the financial penalty which matters. It seems, with respect, to make no sense to remove the possibility from an agreement which provides some sort of incentive to make that agreement. To impose a requirement that the penalty must be,

“broadly comparable to the fine that a court would have imposed on … a guilty plea”,

seems, as I have suggested, to be wrong in principle.

However, there is another reason. It was pointed out clearly by the noble Lord, Lord Marks of Henley-on-Thames, in Committee, when he noted that this provision only applies if there is a financial penalty. There are a number of options in the agreement: a financial penalty; compensation; donation of money to charity; disgorgement of profits; implementing a compliance programme; and so on. There is a whole menu, but this provision says that if you have a financial penalty is has got to be the same fine that would have been imposed, broadly speaking.

That seems to lead to an absurd situation. In the discussions that are taking place, the company will say, “We don’t want to pay the full fine that we would have paid. We are prepared to accept our guilt even though we think that we could fight this in court and get off, but we do not want to pay the full penalty”. Then the prosecutor is faced with saying, “Well, either that means no penalty at all, because then I can escape the straitjacket of subsection (4), or you have to pay the full penalty, so there is no deal. So we will be forced to go into court; we may lose the case; it will cost the public a great deal”. It seems to make no sense at all, and the noble Lord, Lord Marks, was quite right to draw attention to that.

It is critical that deferred prosecution agreements work. Of all the amendments necessary to make this work, I suggest that this is one. One needs to remove the straitjacket whereby the penalty has to be the same as the fine that would have been imposed. In promoting that—I shall come to the way to do it—I want to underline that the scheme that the Government have put forward contains safeguards against a wrong agreement. Those safeguards are, first, that the deal has to be approved by the Director of Public Prosecutions, the director of the Serious Fraud Office or another senior prosecutor specifically designated for that role. There is no doubt that a senior prosecutor will have to make the decision. Secondly, the deal has to go through not one but two approvals of the court, the preliminary approval and the final approval. That is the structure of the proposal. I cannot see why this opportunity to make an agreement with some greater incentive should be removed.

There are two ways of achieving this, and that is what my two alternative amendments are designed to do. One is simply to remove sub-paragraph (4) altogether. I would be content with that. It achieves the objective and it leaves it to the discretion of the prosecutor and the court to fix the right elements. If there is some sentencing guideline as to what is appropriate, that is perfectly proper and perhaps it does not need to be contained in the Bill. That way of dealing with the matter meets an objection raised when I spoke to the other amendment in Committee when it was said that by saying “not more than broadly comparable”, one had to work out what the fine would have been, that that was difficult and it was therefore unreasonable to say that it should be “not more than broadly comparable”. I did not say then what I say now: that seems to be an objection to the provision as it stands, in any event. If the Government prefer, I accept that the alternative way of doing this would be not to say that the amount of any financial penalty should be “broadly comparable” to the fine that would have been imposed on a guilty plea, but “not more than” such a fine. It sets a finite level.

I want to make one further point before I briefly deal with the two other amendments in my name, Amendments 116C and 116D. I have gone back to the consultation paper to consider what respondents actually said on this issue because a question arose in our meeting as to whether I had recollected correctly that a majority of respondents had thought that the reduction should not be limited to the one-third reduction that one receives on a guilty plea. On page 28 of the Government’s response to the consultation paper at paragraph 102, it is stated:

“57% of respondents disagreed with the proposed maximum reduction of one third”.

Also, paragraph 105 states:

“We have noted the concerns raised by respondents that the maximum penalty level of one third may not prove to be sufficiently attractive in practice”.

Those are exactly the points that I have raised, and it appears that a majority of respondents took that view. I take some heart from that.

The other two amendments go together. Amendments 116C and 116D are simply intended to provide that in a deferred prosecution agreement there should be an obligation to spell out to the person who accepts it what the consequences may be, so that people know where they stand. There may be other ways of achieving that, but it seems right that the deferred prosecution agreement should, one way or another, make it clear to someone who is signing up to it what the consequences may be. Of course, if the person signing up to the agreement is a great corporation advised by substantial firms of lawyers, they do not need such a provision, but these cases may not be limited to such corporations and people deserve to be told just what they are getting into. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should warn your Lordships that if this amendment is agreed to, I cannot call Amendment 116B by reason of pre-emption.

[Lord Beecham]

My Lords, I respectfully adopt and support most of my noble and learned friend’s comments and indeed most of his amendments. If I had a preference between Amendments 116A and 116B, I think it would be Amendment 116B, but it would be interesting to hear which way, if either, the Minister inclines on that particular aspect.

It seems very sensible that other possible consequences of a failure to comply should be incorporated, so I endorse Amendments 116C and 116D. As to the amendment in my name and that of my noble friend Lord Rosser, we return again to the principle of having these novel matters debated openly before the new process is set in motion. In this particular case, it is a matter of having the financial penalties and parameters that would be proposed by the Sentencing Council subjected to scrutiny and debate but not, as I suggested in Committee, to an affirmative procedure. In retrospect, I think that was going too far and perhaps trespassing on the role of the Sentencing Council in an unacceptable way, although I note that there seem to be some judicial misgivings about the operation of the council. Be that as it may, it does not relate specifically to this point.

Again, bearing in mind the need to carry public opinion with us on this new process, it would be helpful to have that debate before the Sentencing Council’s proposals became adopted. The novelty of the process is such that not only would that be justified but it would actually assist in securing public acceptance. I can anticipate the next amendment, which is very much on the same line; again, having it debated should inform both public opinion and possibly the final decision-makers in a way that can only contribute to the success of the experiment, if that is what it is. I suspect that it will be a successful experiment on which we are embarking.

On the question of incentives, my noble and learned friend is right. It is quite clear from the American example—I repeat for the second or third time that very much larger sums are secured under the American system—that an incentive has to be provided. Whether that is a maximum of one-third or not is another matter. I am not entirely surprised that most respondents disagreed with a maximum of one-third; no doubt they would prefer it to be larger, which underlines my point, but there needs to be some open debate about this before a final decision is made.

In these circumstances I hope that the Government will, even at this late stage, acknowledge that there is substance in my noble and learned friend’s amendments, and I hope that they will also agree that my proposal would actually assist in gaining acceptance for this new process, both by the public at large and by those who will potentially be the subject of its operation. In that spirit, I beg leave to move the amendment in my name.

Crime and Courts Bill [HL]

Baroness D'Souza Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Goldsmith]

The quality, as my noble friend says, is however very high. The way the Bill is structured is that there are two court approvals. Under paragraph 7, there has to be a court approval before a DPA is entered into and then a court approval, described as a final hearing under paragraph 8, afterwards. My question is: why is it necessary to have both? I am really not clear what the advantages are because it is plain, under paragraph 8, that a DPA does not come into effect and cannot be entered into unless there is the court’s approval. Why does one need the prior approval under paragraph 7? I do not see the advantages; that is why it is a probing amendment.

I also see disadvantages. There are costs and court time, both of which are precious commodities—particularly for the ministry that the Ministers represent. I am concerned that it is also unnecessarily cumbersome. May it also distort the negotiating process? Might a defendant who is a potential agreer to a DPA say, “I know you want more, Mr Prosecutor, but let us go and ask the judge whether what I have offered so far is enough”. I am not very happy with that proposal. Above all, why is it necessary to have a double process? That is the question. Amendments 37 and 39 are consequential to that amendment.

The next point, which I imagine can be dealt with very quickly, is in Amendments 34 and 36. These amendments are designed to ensure that whatever process there is, whether it is preliminary or final, it is clear that the defendant is to be present when that takes place. I have little doubt that that is what is intended but I would like reassurance on it, and that there is not to be any form of ex parte application by the prosecutor to the court—something to which the defendant is not a party.

Amendment 40 raises a more substantial point. As it stands under the scheme of the Bill, when a DPA comes to an end certain things are to happen. Paragraph 11(8), to which this amendment applies, requires that at that stage there should be details of the compliance. It says that:

“Where proceedings are discontinued under sub-paragraph (1)”,

which I apprehend is when the DPA has come to an end,

“the prosecutor must publish … the fact that the proceedings have been discontinued, and … details of P’s compliance with the DPA”.

I am rather concerned about why that is necessary. It cannot be for the purpose of checking whether there has been compliance because that must be for the prosecutor to do. Indeed, if the public say, “We don’t like this compliance”, there is no procedure for the DPA somehow to come back into existence, so I do not see why it is necessary. If, to take a different case, a prison sentence is reduced for good behaviour, the behaviour that has led to the reduction is not published.

I am concerned for one reason in particular. If there is a lengthy DPA, and the company, which it seems it is simply going to be, has complied and done what was necessary, the publication of the details of its compliance—and I do not know how detailed that will be—would result in the whole thing being revived. That is a little against the spirit of the idea that you make an agreement, it is sanctioned by the court, you comply with its terms, and then your record does not get sullied again. I am concerned that the consequence of this may be to raise the matter again to the disadvantage of the defendant who has done all that was required of him or her. If it is necessary because there is a real point in publicising the details of compliance, that may be one thing, but because I cannot, at the moment, see the benefit of it in the scheme of the provision, I question its desirability. I look forward to hearing what whichever noble Lord responds will say about it. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

I must advise your Lordships that if this amendment is agreed to, I cannot call Amendments 34 and 35 by reason of pre-emption.

[Lord Marks of Henley-on-Thames]

I shall speak briefly to Amendments 38 and 41. Amendment 38 is about public final hearings. Just as there are absolutely sound reasons for the preliminary hearing considering a DPA to be in private to avoid prejudicing any subsequent prosecution, if no DPA is entered into, and to avoid prejudicing negotiations for a DPA, so the final hearing should generally be in public unless there is still at that stage a substantial risk of prejudice. I suggest that that is essential for the public administration of justice and to build and maintain public confidence in these new arrangements. That is the point of Amendment 38.

Amendment 41 is on a similar theme. Under paragraph 12, the court may postpone publication of the terms of a DPA or of a decision on a breach, variation or discontinuance of a DPA if it appears to the court that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings. This amendment limits any such postponement to the period of such continuing risk, so that as soon as the risk disappeared, publication would follow. Again, I suggest that that must be in the interests of the public administration of justice.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness D'Souza Excerpts

Tuesday 27th March 2012 Lords Chamber

Amendment 1 meets the concerns raised in Committee and I urge the noble Lord, Lord Bach, not to move Amendment 2. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, I remind your Lordships that if this amendment is agreed to I cannot call Amendment 2 for reasons of pre-emption.

[Lord Thomas of Gresford]

My Lords, I am grateful to my noble friend for the amendment. He knows that we on these Benches raised this issue before Second Reading. It is necessary to have flexibility brought into the Bill for two reasons: first, because economic conditions may improve and it may be possible to revert to a more generous legal aid scheme; and, secondly, because those of us with experience of litigants in person know they can clog up the courts and that, consequently, it may be necessary for urgent amendments to Schedule 1 to introduce legal aid to enable people to be legally represented. It is not fully appreciated by the public that legal representation shortens cases and leads to justice, rather than litigants in person trying to fight their own cause.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness D'Souza Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Faulks]

My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.

First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.

Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.

There is another reason. However well planned the cuts are—I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment—it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.

I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,

“the LSC will monitor the situation to ensure that they are aware of any market shortfall and the Government will work closely with them so that that they are able to respond promptly, effectively and appropriately”,

should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships’ Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.

The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should remind the Committee that, if this amendment is agreed to, I cannot call Amendments 23 to 27 for reasons of pre-emption.

[Baroness Butler-Sloss]

My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.

As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.

House of Lords: Reform

Baroness D'Souza Excerpts

Wednesday 21st July 2010 Lords Chamber

[Lord McNally]

I am thinking of those wishing to talk to the Inland Revenue. I go back to what I said. It is very interesting and like Attlee’s definition of an elephant: when you see a working Peer, you recognise one. I recognise a lot around this House.

[Baroness D'Souza]

Does the Minister agree that the main functions of this House—to revise legislation and to hold the Government of the day to account—would be adversely affected by the Government having an overall working majority?

[Lord McNally]

That is why I think that the present arrangements, where the Government have no overall working majority, work excellently.

Defamation Bill [HL]

Baroness D'Souza Excerpts

Friday 9th July 2010 Lords Chamber

[Baroness D'Souza]

My Lords, I add my congratulations to the noble Baroness, Lady Hayter, on an inspiring comaiden speech.

What needs to be said on this wide-reaching and vital aspect of freedom of expression has already been said by the noble Lord, Lord Lester of Herne Hill, and other noble Lords. They all spoke with great eloquence. I confess that I have nothing much more to add. However, I add my support to this Bill and will take up one or two points. Before doing so, I shall state my position. Long experience of defending free speech as the cornerstone of democracy has led me to the conclusion that there should in all cases everywhere be a presumption of transparency, free speech and access to information, unless and until a clear infringement of another fundamental individual right can be demonstrated. In the case of defamation, as we have learnt today, that would mean that reputation has been wilfully damaged or financial loss suffered, unless one is dealing with matters of serious public interest.

A number of landmark judgments by the European Court of Human Rights, admittedly based largely on criminal defamation, nevertheless helped to establish a set of principles. They include: the pre-eminent role of the media in informing public opinion on matters of public interest and in acting as the public watchdog, which requires that the media be accorded particular latitude; that a defendant must not be required to prove the truth of value judgments, statements reflecting public opinion or allegations based on rumours or the statements of others; and that private individuals have a much narrower limit of acceptable criticism than governmental bodies or political figures. The underlying rationale is that the public interest in the widest sense cannot be supported in the absence of these freedoms.

Defamation laws as they presently exist undoubtedly have a chilling effect on freedom of expression, as has been said by almost everyone. The enormous costs involved alone cause the less wealthy among us to agree to the suppression of the truth. Even the costs of finding out whether a given statement or article might be defamatory can be prohibitively expensive.

The incidence of failure to report on matters clearly in the public interest because legal bargaining intervenes is large, as is the number of cases settled pre-trial, and inevitably there will be an even larger number that never come to light. I am thinking of reporting of medical and pharmaceutical information, environmental threats, information on the fitness to lead of political and other leaders, revelations on corruption and the like. One of the longest running cases in legal history concerned criticism of a technique of dental anaesthesia to which some patients reacted adversely. Some of them even died. A dentist associated with this method managed to convince the courts that the article was defamatory of him. The case ran for over three years and cost the medical journal involved millions of pounds at current rates.

It appears that judgments now tend to favour free speech, but the costs of getting to the stage of a court case, no matter that the defendant is ultimately vindicated, are huge and exert a chilling effect. Moreover, the width of potential liability is very great and involves everyone who has had a part in a supposedly defamatory publication. It can include the publisher, the author and even the printers. How many editors of scientific journals are there who have to ponder every word of a given critique before publishing? A small specialist journal, which will be well known to all the lawyers in this House, Tobacco Control, was almost put out of business by libel laws without any action being taken against it. The insurers of the journal, which was inevitably critical of tobacco companies, decided that the risk of being sued was too great as a possible £2 million action was at stake. Eventually the journal went ahead on the basis that every article was read by a libel lawyer. The conditions were strict: even material ualready published in the US was disallowed since that is not considered to be a defence.

Current laws in the UK are unsatisfactory on several counts and do not reflect the explosion in electronic communication such as the internet. Furthermore, the law needs to deal with the multiple publication rule. One of the most egregious aspects of our law is that it fails to protect the whistleblower. The noble and learned Lord, Lord Hoffmann, has expressed concerns about libel tourism and the potential Americanisation of UK defamation laws. British libel law is undoubtedly antithetical to the protections afforded the press by the US constitution, but this Bill is not about libel tourism and seeks only to protect the free expression of those within the borders of the UK.

However, as in everything, there is a balance to be struck. What is needed above all is clarification of the current laws and their application to allow individuals and corporations to protect themselves from malicious attacks, and to enable fair comment and the absence of enforced self-censorship. The Bill goes some way in achieving this and is a welcome addition to the armoury required to protect the vital right to freedom of expression.

House of Lords Reform: Committee Membership

Baroness D'Souza Excerpts

Tuesday 8th June 2010 Lords Chamber

[Baroness Jay of Paddington]

My Lords—

[Baroness D'Souza]

My Lords—

[Lord Strathclyde]

My Lords, I know that many Peers wish to speak. Perhaps we could have the Convenor next and then someone from the Labour Party.

[Baroness D'Souza]

My Lords, does the noble Lord, Lord McNally, agree that two fundamental issues must, or should, underline the deliberations of the cross-party committee? The first is the need to identify the clear and necessary functions of the House of Lords. The second is that any proposals put forward should necessarily enable this House to do its job more effectively.

[Lord McNally]

My Lords, when we first meet I will draw those statements to the attention of the chairman, because they give a succinct work-in-progress for us.