Victims and Prisoners Bill

Baroness O'Loan Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I wish to speak today on a couple of issues to which the Bill gives rise. Noble Lords have said that, on the face of it, this seems an eminently sensible Bill in many respects, and I think there will much support for elements of it across the House. However, it has caused significant concern among organisations and NGOs that operate in fields such as criminal justice and the protection of victims of domestic violence. I am thinking of organisations such as Amnesty, Justice and Inquest and, most recently, some of the families affected by the Hillsborough disaster, the Manchester bombing, the Grenfell Tower fire and the Daniel Morgan case.

In all these cases, those charged with inquiring into what happened experienced delays and even obstruction in getting access to material necessary to establish what had happened. The measures in this Bill and the Criminal Justice Bill do not go far enough in addressing the problems identified by victims during repeated criminal cases and inquiries over the years, not least the disproportionality of resources available to statutory agencies, which may be able to brief several leading counsel, and to victims, who find themselves struggling to afford the costs of one. All these matters increase the stress experienced by victims, and a code and a charter do to not equate to a statutory obligation on agencies. I attended the Minister’s briefing on his Government’s response to the Jones report on the Hillsborough case and the experience of victims, and there was universal sadness and concern about the Government’s response.

The Human Rights Act has been very significant in strengthening the rights of those who, for various reasons such as poverty, homelessness and marginalisation, are unable to engage as fully as they might with the criminal justice system, whether as victims, perpetrators, alleged perpetrators, or even ultimately as prisoners. These tend to be the people for whom life is hardest, very often for reasons outside their control. It has been observed on many occasions that people can end up in prison for less serious offences, while the perpetrators of serious crimes may not even be investigated because of the lack of the resources needed for serious criminal investigations.

It is important that, having reappointed the noble Baroness, Lady Newlove, as Victims’ Commissioner—a recognition of her significant contribution in this area—the Government should listen carefully to the observations about the Bill which she expressed in a fine contribution this afternoon. She brings such experience and courage to this role. I particularly ask the noble and learned Lord the Minister to consider enhancing the provisions in the Bill on the care and support of victims of domestic violence.

Clauses 49 to 51 provide for the setting aside of the Human Rights Act, which requires public authorities and judges to interpret and apply legislation in accordance with human rights law in so far as is possible. Clause 52 weights judicial decisions on qualified human rights decisions against prisoners. Matters relating to release issues such as the right to family life, the right to liberty, and the right of access to the courts and a fair hearing, will be impacted by these clauses. Allowing judges to continue to take into account issues which are relevant in the light of Section 3 of the Human Rights Act is not a matter of going soft on prisoners. Reducing that judicial capacity is not justified by the evidence we have to date.

I had the privilege to serve under Lord Justice Sir Peter Gross in the review of the Human Rights Act a year or so ago. Despite taking extensive and varied evidence, we did not identify any grounds for the changes to the application of the Human Rights Act proposed in this Bill. It should be a matter of concern to all of us that we are progressively and incrementally dismantling the provisions of the Human Rights Act that have applied in this country under the ECHR, and now under the Human Rights Act, for the past 70 or so years. We were rightly proud of our contribution as a country to the creation of the convention, which followed the Second World War, with its appalling death toll, its genocide, and the attacks on homosexuals, Christians, the disabled and many others who were regarded as unnecessary or unwanted by the Nazis, and its devastation and destruction of the world.

The convention articulated very basic human rights, and Section 3 is a statement of the need for the judiciary to act in accordance with it, as part of the rule of law now. Over recent times, we have seen legislation which seems simply to ignore these obligations under domestic and European human rights law. I think of the Illegal Migration Act, so roundly condemned in your Lordships’ House. Then there is the Northern Ireland Troubles (Legacy and Reconciliation) Act, currently the subject of multiple judicial review applications challenging its legality—judicial reviews that were anticipated from the very beginning, at the First Reading of that Bill. The world anticipated those judicial reviews, and it is important that we do not get a reputation for setting aside our human rights obligations when they seem to become less than convenient.

Paragraph 100 of the Explanatory Memorandum explains:

“The purpose of this is to avoid courts adopting a strained section 3 interpretation, which ultimately disregards the policy intentions of the release regime. The measures also provide that, where a court is considering a challenge relating to a relevant Convention right, in relation to application of any of the release legislation, the court must give the greatest possible weight to the importance of reducing the risk to the public from the offender”.


There is very little evidence to support the existence of this hypothetical risk. These provisions have the effect of discriminating against one small sector of society by disapplying rights that others have. The parole and release systems have generally worked well. This intervention is not necessary or proportionate, and I urge government to think very carefully about the effects on the UK’s reputation and its global capacity of the way in which this legislation is formulated.

King’s Speech

Baroness O'Loan Excerpts

Wednesday 8th November 2023 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, keeping the public safe is undoubtedly a worthy, desirable and even necessary aspiration for Government, and the PM’s briefing on the gracious Speech gives us some rather interesting figures in relation to the proposed legislation. It is very good to see that there has been an increase of 5.1% in police numbers in the past year, giving us 147,430 full-time equivalent police officers—some 3,700 more than we had in 2010. However, the population has increased over the same period by some 7 million, crime has become more complex, and serious organised crime has grown exponentially. In addition to that, across England and Wales there are about 5,000 officers on long-term absence, and a further 7,500 are on adjusted duties, meaning they are not available for front-line policing. We need to bear this in mind as we contemplate how we should reform the law.

Key figures also indicate a significant reduction in reported crime, but the Crime Survey for England and Wales estimates that only 40% of crime is reported to the police. Crime reporting and methodologies have obviously been the subject of a lot of discussion, and it is widely reported that either police will not respond or that people have no faith that there is any purpose in reporting. There have been reports that police will not investigate shoplifting under £200, that judges have been told to delay the sentencing of criminals because the prisons are too full, and that police generally will not respond to domestic burglaries and vehicle crime. The issuing of a crime number for such crimes does not address the task of preventing future crime by the perpetrators. Add to that the factors such as intimidation and fear of reprisals and it would perhaps be unwise to conclude that crime levels are in fact diminishing.

The proposals in the sentencing Bill to increase the duration of prison sentences which must be served in certain cases are perhaps attractive until one starts to think about the fact that our prisons are grossly overcrowded. I welcome the proposal for a presumption that a sentence for custodial terms of 12 months or fewer will be suspended. It will be interesting to see the evidence that extending the proportion of a prison sentence which must be served will have the effect of reducing crime. The purpose of prison would surely be much better served if the resources available were used to provide rehabilitative schemes, educational services and adequate mental health services within our prisons, rather than keeping prisoners in custody for longer and longer periods of time, in situations in which they are provided with consoles to play games to keep them occupied, rather than doing anything which is going to equip them to play a purposeful, contributing role on their release.

As the noble Lord, Lord Marks, said, there are reasons why it is important to have flexibility in how long the most serious offenders must serve. If they have some hope, in the form of an understanding that they may be released early if they behave themselves and that they may be detained for longer if they do not, they may be influenced in how they behave, thus making the job of those prison officers who have to look after them easier, and indeed safer.

The proposals to ensure that criminals face the consequences of their actions by forcing them to appear in court may seem attractive. However, perhaps a note of caution is merited. Even the logistics of forcing someone to appear for sentencing may be very challenging for those required to bring the individual into court. If someone does not wish to go, undoubtedly prison officers and police officers are trained in how to make them go. However, the logistics are difficult. Manhandling people into court is possible, but anyone who has witnessed the process of moving somebody who does not wish to move will know that it will be difficult and may actually cause further distress to the victims of the crime for which the sentence is being proposed.

A letter yesterday from the Home Secretary indicated that the Home Office will introduce new legislation to give effect to the recommendation made by Bishop James Jones on the Hillsborough issue for a statutory duty of candour. It will not be enough to introduce a statutory duty of candour on individual officers, welcome though that may be. The Daniel Morgan Independent Panel, which I had the privilege to chair, recommended the creation of a wider statutory duty of candour, to be owed by all law enforcement agencies to those whom they serve, subject to protection of national security and relevant data protection law.

For there to be confidence in policing, there has to be confidence that organisational failings, particularly the failing to address criminality within the ranks of police forces, will be dealt with, and that institutional defensiveness and lack of transparency will not result in a failure to admit and address institutional failings. Concern about the lack of transparency linked to institutional defensiveness led to the establishment of a statutory duty of candour in the National Health Service. There have long been calls for a similar duty in relation to police. As a panel we recognised the complex challenges of guaranteeing public accountability of an organisation such as the police, not least because of the requirement to protect information in accordance with the law. However, those challenges should not prevent frank and prompt accounts to the public about mistakes and wrongdoing. Such a duty of candour would not in any way compromise the necessary protection of information in accordance with the law.

Assisted Dying Bill [HL]

Baroness O'Loan Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, as legislators, we surely have a duty to safeguard the public good as best we can. We must legislate in the public interest, taking into account the needs not only of the strong and eloquent but also the weak and vulnerable, who have come to believe, perhaps, that their lives have no value because that is what so much of society tells them if they are sick, or ageing—as so many of us are in your Lordships’ House—if their ongoing existence is eating up the money they have faithfully saved to leave something to those they love, or if they need care and are afraid of becoming a burden on those who care for them. We have a duty to all these people, and the Bill does not provide the safeguards and protections they need from those who would encourage them to make the required declaration.

Questions about safeguards and public safety are central to whether the Bill merits the support of Parliament. If it is not safe, it must be rejected. The Bill offers no real safeguards, only vague statements of intent with no detail of how they can or should be enforced. With great respect to the noble Lord, Lord Low of Dalston, these are not speculative concerns. Parliament is being asked to pass assisted suicide into law and let the Department of Health and Social Care develop a code of practice at a later date. There is an assumption that MPs and Peers should—and would—allow themselves to be bypassed, and that they would abdicate their responsibility, surrender their powers and fail in their duty of scrutiny.

The Bill is window-dressed, seductively, with deceptive assurances of safety. We have heard repeatedly just how difficult it is to make a prognosis of imminent death. How are a settled and informed wish for assisted suicide, mental capacity and freedom from pressure to be established? A 2020 report from Oregon revealed that 53% of patients requested lethal drugs because they feared becoming a burden on those they loved who cared for them. There is an assumption that doctors will do the dreadful work of facilitating and assisting suicides. Another 2020 survey showed that the majority of those licensed to practice who are closest to the terminally ill and dying patient, do not support legislation on assisted suicide and will not participate in it.

My postbag was unusually full on this occasion, not only with letters from people asking me to oppose the Bill, but also from a number of clinicians who set out, very articulately, why it was such a dangerous Bill. Some of those emails and letters have been quoted in your Lordships’ House today.

How are judges to assess the decisions of the doctors, who are the gatekeepers of death in this legislation? Fundamentally, as has been said, the Bill will change the role of medical professionals from caregivers into killers. I am afraid that when you terminate the life of somebody that is what happens.

We can do better than this. We can spend our money on improving palliative care. The current prohibitions against assisted suicide are effective safeguards that strike a delicate balance. Without them, the health service will become dangerous for the most vulnerable people in our society. There is nothing in the noble Baroness’s Bill to protect them, just an awful lot that may bring terrible harm.

Inquiries Act 2005 (Select Committee Report)

Baroness O'Loan Excerpts

Thursday 19th March 2015 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I join with other noble and noble and learned Lords in congratulating the noble Viscount, Lord Tenby. When I came into this House five years ago, I, too, benefited very much not only from his gentle courtesy, but from his profound wisdom and I would like to thank him for all that he has done in this House.

I am grateful to the noble Lord, Lord Shutt, and the members of his committee for the excellent report that they produced on the Inquiries Act. This debate affords an important opportunity for the Government to review their position in relation to their response to the report.

I declare an interest. I am chairing the Daniel Morgan independent panel. It is not an inquiry under the Act; it is a Hillsborough-type independent panel, which was set up to examine the murder of Daniel Morgan in London in 1987, allegations of police involvement in his murder and of police and media corruption affecting the investigation. The issues that we have discussed are therefore of significant interest to me.

The genesis of this Act goes back, among other things, to 2003, when the European Court held that there had not been sufficiently effective and independent investigation for the purposes of Article 2 of the European Convention on Human Rights into the circumstances of the death of Belfast solicitor Patrick Finucane. He was murdered, it was subsequently established, as a consequence of,

“a series of positive actions by employees of the State”,

which,

“actively furthered and facilitated his murder and … in the aftermath of the murder”,

we are told,

“there was a relentless attempt to defeat the ends of justice”.

The Select Committee in its report was very clear that the Act does not as a whole require radical surgery, but it sets out clearly the deficiencies in respect of which evidence was received. The recommendations for amendment have already been referred to by a number of noble Lords and are summarised on page 89 of the report. Many of the deficiencies identified by the report go to the independence of the inquiry process. That is vital to public confidence in the Act, in the inquiry process and in governance. In responding, as the noble Baroness, Lady Stern, and others have said, the Government rejected the call to amend the most important of these provisions—the ministerial powers to amend the terms of reference, appoint members and, most particularly, the use of restriction notices.

As the noble Baroness, Lady Stern, said, in paragraphs 69 to 72 of their response, Her Majesty’s Government state that Ministers,

“will understand the nature of national security and other sensitive material”.

I have no doubt that we need to protect our national security. Having been the victim of a bomb explosion and having had other terrorist-related experiences, I am very clear about that. There are many threats to national security, as we know. But there is an imperative to learn from our past, not just on the terrorist front but as we now contemplate even just the number of inquiries currently being established into historic child sexual abuse and its alleged cover-up. Lord Acton, in one of his letters in January 1861, famously wrote:

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity”.

There is a temptation in any organisation to cover up its wrongdoing. We have seen it across so many professions and institutions. Governments will not be immune to that temptation and those who have advised them and their successors may seek to cover up past wrongdoing to protect what they perceive to be the stability of the present. But when we build on the shifting sands of noble cause corruption, we do so at our peril. We do not need to think back very far to identify situations in which a dishonest response, and a quick calculated inquiry, such as that which resulted in the Widgery report on Bloody Sunday, resulted in serious damage. They say in Northern Ireland that the Bloody Sunday shootings were one of the best recruiting agents for the IRA. We heard reference to the Saville report and to its cost, but I remind noble Lords and Her Majesty’s Government that a lot of the costs of that inquiry resulted from challenges by the Government and their agents to the inquiry itself. We must remember that.

I do not say this to offend; I say it because there is a duty on those who conduct these inquiries to do so using every tool at their disposal to uncover the truth. The power of the Minister to restrict attendances and block access to and disclosure of documentation, as the noble Lord, Lord Saville, is reported to have said in the report made,

“a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings”.

That view was also clearly articulated by the Joint Committee on Human Rights and the House of Lords Select Committee, stating that the power to make such notice compromises the Article 2 compliance of an inquiry by curtailing its independence and restricting the ability of the next of kin effectively to engage with an inquiry so as to enable it to lead to an accurate determination of responsibility.

A way forward in this dilemma was identified in the Baha Mousa inquiry, the chair of which was able to maintain his independence by insisting on a protocol that allowed him to maintain control over disclosure. However, placing the burden to stand up for independence on the chair is not right and does not ensure that, in the future, every inquiry will be independent and effective. The reality is that an inquiry that is deeply immersed in what might be millions of pages of documents is much better placed to assess the relevance of documentation and capable of protecting that which requires to be kept secret than the Government and their advisers.

The Finucane family, whose tragic loss has been the subject of so many limited inquiries, firmly believe that the whole truth about what was happening in Northern Ireland at the time, which led not just to the death of Patrick Finucane but to that of Adam Lambert, has not been told. It is now common knowledge that many other people died at the hands of terrorists because of the involvement of state agents in one way or another in these murders and the protection of those who committed them. I have seen the pattern of activity involving the state and paramilitary organisations, republican and loyalist. That is why they continue to call for a public inquiry, as, indeed, do other victims of atrocities.

Such inquiries must have proper independence. It is 27 years since Patrick Finucane was murdered and 13 years since the then Secretary of State declared that there would have to be an inquiry, but the terms of the Inquiries Act are such that the family cannot be sure of the initial and ongoing independence of any inquiry. The arguments not to have inquiries into atrocities such as the deaths of Mr Finucane and the Ballymurphy and Omagh victims are not even persuasive, let alone convincing, as we look at inquiries which have been established under the Inquiries Act.

It is not in the interests of national security that we protect those who did wrong, yet this Act, as currently framed, makes it much more possible for this to happen. I know that those seeking to protect vital national interests have, on occasion, been badly advised, but we all know that not every document marked “Secret” merits that mark and not every confidential document is in any way confidential. Each document should be capable of being examined on its merits by an independent inquiry. Chairmen and inquiry members should be cleared to the necessary level and can be briefed by the same people as Ministers. They surely have as much intellectual capacity as Ministers and hence will be competent to understand the nature of any briefing or explanations. Judges and others routinely work in areas of national security. They do not come new to it when they assume the role of chair of an inquiry.

As several noble Lords have said, Her Majesty’s Government’s arguments and their response to the Select Committee report are not convincing. There is significant risk of reputational damage to the UK as a consequence of the way the Inquiries Act was drafted and is playing out. As I have said, I am completely convinced of the need to protect national security, but I ask the Minister to look again at these provisions. I also urge any new Government to consider seriously the implications of the ongoing lack of trust which is to some degree perpetuated and even aggravated by the current state of the law. As we fight our current anti-terrorist battles, it is profoundly important that we do not, through our legislative and administrative activities, demonstrate that we are not capable of learning the lessons of the past. For 10 years there has been consistent criticism of this Act by parliamentary committees, by many noble and learned Lords and by other very distinguished academics. It is beyond time for change.

Assisted Dying Bill [HL]

Baroness O'Loan Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness O’Loan (CB)]

I apologise for interrupting the noble Lord, but I just wanted to inquire: why does he think that it would cause confusion to introduce the term assisted suicide rather than assisted dying, when the actual fact is that it is assisted suicide? I just do not understand the logic. People understand suicide and dying as two separate acts.

[Lord Warner]

If we are really concerned with what the public understand, it is a bit presumptuous to assume that they have been following these debates for 10 to 12 years but have not understood what we have been talking about in terms of assisted dying. We get a lot of criticism in Westminster—

--- Later in debate ---

[Lord Mawhinney (Con)]

My Lords, as one who has signed several amendments, I will say that I did so not because of conversations with other noble Lords but because I read the Bill. The more I read, the more I was puzzled by its title. I wish that I had thought of the simile that the noble Baroness, Lady O’Neill, used when she talked about the similarity with truth in advertising. I came to the view that the Bill was about assisting suicide rather than assisted dying. I was stimulated along that thought process by two things. One was the speech of my noble friend Lord Howard at Second Reading when he talked about the work of the hospices. I have recently had some involvement with a hospice in Peterborough. The second was correspondence with doctors who work in the palliative medicine field. Both things created in my mind the vision that the noble Lord, Lord Winston, and the noble and right reverend Lord, Lord Harries of Pentregarth, gave of assisted dying being a palliative feature of making the process more comfortable for the patient.

I am just smart enough never to want to tangle on legal matters with the noble Lord, Lord Pannick. I noted the points that he read to us from the Bill in support of his contention that the Bill is perfectly clear. The second thing that caused me to come to the conclusion that I should put my name to the amendments was Clause 4—so let me read just a little bit to your Lordships. It states:

“The assisting health professional must remain with the person until the person has … self-administered the medicine and died”.

Where I come from, I guess that they would call that suicide. The noble Lord, Lord Brennan, introduced the word “euphemism”, which has been at the heart of a lot of the speeches that we have heard. It has taken the form of clarity in telling the truth. I have to say that in all honesty I do not like the euphemism attached to the wording of the Bill when it comes to this point, and I was happy to add my name to the amendments tabled by the noble Baroness.

[Baroness O’Loan (CB)]

My Lords, by convention I must apologise to the House: I was unable to attend Second Reading as I had had major surgery 10 days before. I have listened to the debates and the element of compassion is very clear in all the Members of your Lordships’ House—but compassion is not enough. The Bill is introducing a significant change that is secured by the terminology that it adopts. That is why it is so important that we support the noble Baroness, Lady O’Neill, and the other noble Lords who put their names to this amendment.

The BMA stated yesterday that skilled and compassionate palliative care with good communication and patient involvement can help many patients’ fears of death. By focusing on assisted dying as a solution to people’s anxieties about end of life care, society is having the wrong debate. If we pass the Bill, people will know that there will be circumstances in which we as a society have decided that we want people to be able to commit suicide with assistance from the medical profession. The Bill provides that people must be assisted to commit suicide in specified circumstances; it does not provide that they must be assisted to die.

I have seen close family members die of motor neurone disease and cancer. I know that they were helped as they came to death by the loving care of good doctors, professional and expert nurses and other medical professionals, and by the appropriate application of palliative care. The Bill is about people who want to take their lives being provided with the wherewithal and being enabled by the medical profession to do so, and it is right that the content of the Bill should reflect that reality. One of our duties as legislators is to try to ensure the greatest possible clarity as we make laws—and it is for that reason that I support the amendment.

[Lord Gordon of Strathblane (Lab)]

I join the noble Baroness in arguing for greater clarity on this, and I am genuinely surprised at the level of opposition to what seems to me to be a perfectly reasonable, understated amendment. As the noble Lord, Lord Cormack, pointed out earlier, this does not at all affect the principles behind the Bill. There are still powerful arguments for allowing assisted suicide—and, although I am opposed to it, I recognise them. However, let us call it what it is. It is close to misleading to have the title of the Bill as it is the moment, any more than the title of the Homicide Act should be “Assisted Dying (Involuntary)”. No one would seriously describe a terrorist attack as assisted dying—but they have helped people to die, so I suppose you could justify it on that basis.

We try to narrow down a definition. If it is taking someone’s life against their will, we call it homicide or murder. If it is someone taking their own life, we call it suicide, and we have the Suicide Act 1961. It is that Act, not any other, that is amended by the Bill. How anyone can argue that a Bill amending the Suicide Act should not be called the Assisted Suicide Bill genuinely escapes me.

I draw noble Lords’ attention, although I will not quote it at length, to the Second Reading speech of the noble Lord, Lord Hameed, at col. 834, where he drew the very vital distinction between the withdrawal of artificial impediments to death taking its natural course and active intervention. That is a Rubicon that I think the public do not want to cross. I do not want to accuse the promoters of the Bill of any ill faith, but the fact that they choose to position the Bill as though it is on one side of the Rubicon when everyone knows that it is on the other rather gives me cause to think that they recognise that it is a Rubicon that the public are not yet ready to cross.

--- Later in debate ---

[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.

[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.

Anti-social Behaviour, Crime and Policing Bill

Baroness O'Loan Excerpts

Wednesday 22nd January 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment and want to emphasise why it is so important. In the ordinary way, people who are acquitted of crime do not receive compensation for being prosecuted. I make that point because of questions asked of me in relation to this issue before the House. People are not compensated. As they leave court, if a judge has dismissed the case or a jury have returned a verdict of not guilty, they are supposed to be relieved that their ordeal is over and take satisfaction in that. It is rare indeed that they are paid compensation.

What we are here dealing with are miscarriages of justice—situations in which people are convicted and, at a later date, sometimes years later, their conviction is quashed. Compensation is paid in some cases, but by no means all. I assure noble Lords that inside our system it is very rare for an appeal to be successful on a technicality. Our judges are no pushover and they do not overturn convictions very readily. I say that from years of experience of appearing before the Court of Appeal.

When is compensation paid? As we heard from the noble Lord, Lord Pannick, the Supreme Court decided this issue comparatively recently and, in my view, it resolved ambiguity by introducing, in the case of Adams, what we now call the Phillips test. Compensation will be paid only if there is new evidence that casts the case in a very different light. The new fact has to be so significant that no conviction could now safely be based on the evidence taken as a whole. The noble Lord, Lord Pannick, described it well. There is now a consensus on it between the Supreme Court here in the United Kingdom and the European Court of Human Rights. Sometimes we seek to clarify issues in this House when there is some sort of disagreement between those courts, but that is not the case here—there is absolute agreement between those senior courts. I emphasise that this is not about people getting off on technicalities; the test usually comes into play when something has gone badly wrong.

To ask people to prove their innocence beyond reasonable doubt is an affront to our system of law—the common-law system, so beloved of this House and indeed beloved of me. It flies in the face of one of our key legal principles, which acknowledges that it is very difficult for people to prove their innocence. It is very difficult for people to prove that they are innocent beyond reasonable doubt: “Prove that you didn’t do it”; “Prove that you didn’t kill your baby”; “Prove that you didn’t leave a bomb in the pub”; “Prove that you didn’t set that fire”. In a few cases, DNA can prove innocence, and in a few an alibi can be bullet-proof, but I assure your Lordships that those cases are rare.

I have acted in a number of serious cases involving miscarriages of justice and I know the toll—the cost to the lives of those involved and their families, and the cost to the integrity of the system. I acted in the Guildford Four appeal, where three men and a woman were wrongly convicted of bombings for which they were not responsible. I know because I acted for the people who were responsible for those bombings in a completely different case. The convictions of the Guildford Four were a travesty, but a statement came to light—17 years too late, I am afraid, but after years of assiduous work by wonderful solicitors—which showed that the case was profoundly flawed. A statement had been deliberately buried and it provided an alibi which, when examined, caused the unravelling of the whole case and threw into a clear light some of the other areas of evidence.

I also acted for a woman called Mary Druhan, who was convicted of arson when she was in her fifties. She came blinking out into the light after 11 years in jail, totally institutionalised, unable to negotiate public transport and incapable of rebuilding her life without considerable help. That is why compensation matters. Her daughter had committed suicide while she was in prison. It was a tragedy. New forensic evidence threw the whole case. In that instance, the wonderful television series that existed then, “Rough Justice”, had done the hard graft of revisiting the case, finding that the fire could not have been started in the way described and that Mary was not in the vicinity at the appropriate time. The series has gone now. It is not the kind of thing that the BBC spends money on any more. It was, it said, “too expensive”, and has been replaced by “Big Brother” and other celebrity-driven programmes of much lesser value.

I chaired the royal colleges’ inquiry into sudden infant death. It involved reviewing the cases of Sally Clark and other women—Angela Cannings and others—convicted of killing their babies. I want your Lordships to try to think of something worse for a mother than her babies dying and her demented state in the face of that loss, and then being wrongly accused of killing her children. I want noble Lords to imagine it happening to their wives or children, for those who cannot imagine it personally.

It is no wonder that Sally Clark, who had been a practising solicitor, did not live long after her convictions were quashed. Again, vital evidence was somehow not disclosed to the defence. People who should have known better jumped to conclusions because of the very hyped-up public feelings about child abuse. On a previous occasion when we discussed these matters the name of Sir Roy Meadow was mentioned, as though the statistical evidence was the thing that caused the overturning of that conviction. It was not. It was about the discovery of a slide showing that there was infection on the lung of one of those babies and it was felt that knowing more about infant lungs meant that that baby may well have died of natural causes. One of the problems we discovered in holding that inquiry was the shortage of child and infant pathologists—pathologists who were used to dealing with babies, as distinct from adults. Usually forensic pathologists had experience in dealing with adults who died rather than infants, so the expertise was not being applied.

Cases go wrong, which is why there is a folly in slashing legal aid which allows really experienced counsel to conduct the hardest cases. When a case has gone wrong and new material comes to light which changes the whole complexion of the case, and it becomes clear that a jury in possession of all the evidence would have reached a different verdict, those who have suffered should have some compensation. To expect them to prove that they were innocent beyond reasonable doubt is to add to the injustice they have already suffered. Miscarriages of justice lead to ruined lives. Families are destroyed. People often end up without partners when they come out of prison. They lose jobs and homes. The mental despair and anguish is never fully resolved. That is why they need to have such real help afterwards. People’s lives never go back to how they were. This is where we find, as a decent society, that we have to make amends.

I recommend to this House a current bestseller by Robert Harris, “An Officer and a Spy”. It is brilliantly evocative of the Dreyfus affair—the disgraceful conviction of a Jewish army officer in France about 100 years ago. These cases almost always happen against a backdrop of hyped-up public fever. That book evoked the horrors of false conviction and the ensuing unwillingness of people in authority who got it wrong to admit that the system had gone wrong. Systems go wrong. It is one measure of a society’s values that it is able to put what has gone wrong right, and it should also seek to repair the horrible consequences of wrongful conviction. That is why this amendment should be supported. I call on this House to do the right thing.

[Baroness O’Loan (CB)]

My Lords, the question before your Lordships’ House in this amendment is very simple. Should we—indeed, can we—as a House agree to Clause 161 as it stands? If we do, the result will be that to get compensation for a wrongful conviction—a miscarriage of justice—the person wrongfully convicted will have to be able to prove beyond reasonable doubt that he is innocent of the crime for which he was convicted. Not only must he prove this, he must prove it on the basis only of new or newly discovered facts that led to the miscarriage of justice.

England and Wales, and indeed the whole of the UK, have long accepted that no one has to prove their innocence of a criminal offence; it is sufficient that there is reasonable doubt about whether they committed a crime. If such reasonable doubt is present, they should be acquitted. This principle, which evolved over the centuries in English common law, is one of the bulwarks of our criminal legal system. It has been adopted in many countries across the world and was reflected in Article 11 of the Universal Declaration of Human Rights, drafted, as we all know, largely by British legal experts, and subsequently in Article 6 of the European Convention on Human Rights. The presumption of innocence is an important protection not just here but across the world.

There are cases in which evidence is fabricated or a confession secured in breach of the law, or even where the scientific evidence presented to a court can subsequently be shown to be inaccurate. In such circumstances, a person may have been convicted. Their only route after exhausting the appeals process is to go to the Criminal Cases Review Commission, which has the power to refer such cases to the Court of Appeal for consideration.

--- Later in debate ---

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

My Lords, I am conscious that my noble friend Lord Cormack has set me a considerable task. This has been a highly impressive debate and it is a privilege to be responding to it on behalf of the Government. The issue raised by the amendment was the subject of detailed examination in Committee in your Lordships’ House and of extensive comment at Second Reading. Sadly, there was no equivalent debate in the other place. I thank all noble Lords who have taken part in this debate but hope that the House will forgive me for singling out noble and learned Lords—judges who have grappled with this very issue in a judicial capacity. The House will be much the poorer when we can no longer have the advantage of their presence to enrich our debates.

Noble Lords did not speak altogether with one voice, and that is not surprising. What is beyond dispute is that the identification of a clear test has proved elusive, despite the exertion of great intellectual endeavour on the part of the judges. The clause unamended provides that clarity which has been so far absent.

The concept of a miscarriage of justice is not a simple one and, as has been explained, has been left open to interpretation by the courts since the statutory scheme was first introduced in 1988. This has resulted in the lack of clarity to which I referred, leaving applicants in uncertainty and the Government susceptible to frequent unsuccessful legal challenge, and the associated financial implications, with the taxpayer footing the bill.

Since the debate in Committee, the Joint Committee on Human Rights has published its latest report on the Bill, to which there has been reference during the debate, which included the JCHR’s views on Clause 161. That committee and those noble Lords who have put their names to the amendment propose that the Bill be amended to remove the reference to “innocence” in the proposed statutory test for a miscarriage of justice and to enshrine into law wording similar but not identical to the category 2 test formulated by the noble and learned Lord, Lord Phillips, in the Supreme Court in the case of Adams.

The Government welcome the JCHR’s acknowledgment that the dependence on case law should cease and that legislation is now required to provide clarity where currently there are misconceptions. Although we believe that the definition developed by the Supreme Court in the Adams judgment is capable of more consistent application than that developed by the Divisional Court in Ali, it is still open to a range of interpretations. This is clearly indicated by the Divisional Court’s decision to hear five lead cases in October 2012 arising from a number of legal challenges made against the Secretary of State’s interpretation of the Adams definition. This hearing led to the court’s judgment of 25 January 2013 in Ali and others. The court upheld the Secretary of State’s decision to refuse compensation in four of the five cases. Three of those cases were back in the Court of Appeal in December and the court’s judgment is awaited.

As well as the three cases currently before the Court of Appeal, the Government are aware of a further 13 challenges that await a ruling from the courts. Very, very few of the previous challenges to the Secretary of State’s decisions on this type of case have succeeded.

We believe that the definition proposed in Clause 161 is a better, clearer and fairer way of ensuring that those who have truly suffered a miscarriage of justice are identified and compensated. This will take us back to the straightforward test that was successfully operated between 2008 and 2011—a period that spanned part of the life of the previous Government as well as this one. That being so, we are satisfied that it is a perfectly proper test to enshrine in law.

In the light of its recent case law, it is clear that, while the presumption of innocence is engaged, it is not the substance of the test that concerns the European Court of Human Rights but the way in which decisions are expressed—something referred to by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Phillips. In this context, the European Court of Human Rights appears to be somewhat more concerned with form than substance. It is not for the Secretary of State to adjudicate on whether someone is guilty or innocent—that is a matter to be determined by the courts. The question before him is whether they suffered a miscarriage of justice and are therefore entitled to compensation, or money.

Through this clause, the Government are seeking to determine, robustly and clearly, what will amount to a miscarriage of justice, in a way which is in accordance with our international obligations and in a way that the man or woman on the street will understand. Therefore, when the new fact on which a conviction is overturned shows that the applicant is innocent beyond reasonable doubt, they should be, and will be, compensated. There is no question of applicants for compensation having to prove their innocence; nor is this an issue of the Government seeking to pay less in compensation.

I should stress that the Government remain firmly of the view that the provision in Clause 161 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. We have further set out our thinking on this in our response to the most recent JCHR report, which we sent to the committee last week. In short, it does not follow that simply having “innocence” as the touchstone for compensation where a new fact comes to light means that any refusal to pay compensation amounts to a violation of the presumption of innocence.

Clause 161 brings much needed and long overdue clarity to the test for determining eligibility, as the noble Lord, Lord Brennan, described it, for compensation for miscarriages of justice. As I mentioned previously, this clause is not about reducing the amount paid in compensation, nor is it about the state seeking to escape its responsibilities, and nor—this is most important to emphasise—has this anything to do with depriving people of their liberty.

Of course, everyone in your Lordships’ House is appalled when any miscarriage of justice takes place and anyone, as it turns out, spends much longer, or any time, in custody when they have not committed an offence. This clause is about the Government’s responsibility to pay financial compensation to those who have not committed the crime for which they were unjustly convicted and have suffered a true miscarriage of justice, and to do so in a straightforward manner that provides clarity to applicants and seeks to avoid unnecessary and costly litigation. In answer to my noble friend Lord Elton, this is not a question of someone having to prove their innocence. The presumption of innocence remains a thread that runs through the criminal law. It has been referred to a number of times during the debate, and nothing about this provision in any sense offends that fundamental presumption, which remains a part of our law.

[Baroness O'Loan]

My Lords, I apologise for interrupting the noble Lord in his first foray as a Minister. However, in the light of his repeated statements that nobody has to prove their innocence and that the Secretary of State will make a decision based on the facts, can he answer the questions put by the noble Lord, Lord Brennan, about the difficulties of those whose innocence is not proved by the material on which the conviction was quashed but about whose convictions, like those of Sally Clark and others, there are such significant questions that no jury would have convicted?

EU Treaties: Justice and Home Affairs Opt-Outs

Baroness O'Loan Excerpts

Monday 1st July 2013 Lords Chamber

[Lord McNally]

Quite frankly, no. As I indicated in my answer to my noble friend Lord Marks, our assessment is that the European arrest warrant has many many benefits, which we want to profit from. However, in practice, in some places it has shown a lack of proportionality and in other places it has imposed on British citizens long periods of pre-trial detention. It is those matters that we are dealing with. This is not just a tick-box issue; it is a matter of carefully examining a range of proposals. We are greatly indebted to the Lords committee for its analysis, which will play an important part in the decisions that we make.

[Baroness O'Loan]

My Lords, if we do exercise the opt-out from the European arrest warrant, one consequence will be that we will have no extradition arrangements with a huge range of states, most of which have repealed the original extradition legislation. If the Government are contemplating an opt-out, are they currently in negotiation with those Governments to see whether their legislative programmes would enable the passing of legislation either to allow us to go it alone or to allow the lengthy period of negotiation that would be necessary to enter into another arrangement on an arrest warrant?

[Lord McNally]

The noble Baroness puts forward one of the very real problems of a total opt-out: that we would be left with a whole series of bilateral negotiations and no guarantee of success. The more this question has unfolded, the more we see the wisdom of the Government’s considered discussion and thought about what to bring forward to both Houses and that it is fully justified.

Criminal Procedure Policy: EUC Report

Baroness O'Loan Excerpts

Monday 4th February 2013 Grand Committee

[Baroness O'Loan]

My Lords, I have the honour to serve as a member of European Union Sub-Committee E under the noble Lord, Lord Bowness.

The questions coming before the House in relation to the European Union and our ongoing membership are many and varied. There can be no doubt that in any field of European law, as in any field of law, there will be many measures which could be improved, there will be measures which are redundant, and there will be measures which are critical to the functioning of particular parts of our national systems. It is therefore interesting to note that this 30th report of the EU Committee does not find any major stumbling blocks in the path of criminal justice in the UK consequential upon the activities of the European Union and its legislative process. Indeed, the report states:

“We find that there is significant benefit to be gained from EU legislation setting minimum rights for defendants and victims, particularly for British citizens travelling within the EU who, on the whole, enjoy a high standard of rights at home. However, those minimum rights must be firmly grounded in international law norms, such as the European Convention on Human Rights, to minimise the risk of disrupting the UK criminal law systems”.

The committee also states in paragraph 55 in relation to its scrutiny functions, to which noble Lords have already referred, that,

“we have not yet found it necessary to raise a subsidiarity objection”.

Of course, we have stated our ongoing commitment to scrutiny.

The case-by-case approach to opt in has resulted in the Government opting into all the proposals for criminal procedure legislation, with the exception of the proposal for access to a defence lawyer. That is not yet so formed that it would be viable and would not interfere with the operation of the criminal justice systems. It is just not clear enough. However, in other cases, my noble colleagues have indicated the range of protections available to United Kingdom citizens who find themselves, for whatever reason, as either victims of or witnesses to a crime, or indeed as perpetrators of a crime, in countries outside the United Kingdom. The overall tenor of this report therefore is that there are no significant problems and that the Government should take a positive approach in principle to exercising the UK opt-in in relation to road map legislation.

As my noble friends have said, the report concludes by drawing attention to the decision to be made next May in relation to whether the United Kingdom opts out of the pre-Lisbon EU legislation, including the European arrest warrant. We are conducting a separate inquiry into that matter. I make no statement as to whether the United Kingdom should or should not opt out of the pre-Lisbon measures. As the noble Lord, Lord Bowness, said, we are still hearing evidence. However, I should like to revert for a moment to the report—the subject of this debate—and I draw your Lordships’ attention to the comment by Professor Spencer in paragraph 113 that an “unthinkable mess” would ensue were we to opt out of the EAW.

The EAW of course is not a stand-alone measure. It has coherence with a number of other vital measures, and my question for the Government is whether they are now in a position to enlighten us as to their strategy for dealing with these matters. In June last, the Government responded that they were examining the issue. As noble Lords have said, mutual recognition has proved to be profoundly important for that trust, which is essential to the international fight against crime and terrorism.

However, the reality is that such is the nature of the world in which we live that crime, which has always had its international dimensions, is now in its cross-border dimensions—a major problem for Governments and for the protection of national interests, including national security, and of the public good. Over almost 10 years a series of measures has been agreed by the member states of the EU which has as its purpose the effective and efficient delivery of a coherent response to the threats of international crime and terrorism within and without EU borders. Those measures have included the EAW, a process through which member states may seek the co-operation of other member states in securing the arrest of individuals suspected of crime who are resident in that other state. The UK makes regular use of the EAW, and indeed, in its published evidence, ACPO recently stated that the EAW was the most important of all the measures.

Much is made by some of the fact that the UK receives a very significant number of requests for extradition of individuals to other member states and of the cost of the extradition process. The reality is important. Our ability to extradite rapidly persons who are a threat to public order and safety in the UK provides a protection for people in the United Kingdom. It is simply neither possible nor proportionate to screen every EU citizen coming across borders, yet ACPO statistics show that in 2011-12 the Metropolitan Police Service received 50 European arrest warrants for homicide, 20 for rape and 90 for robbery. The evidence is also available to demonstrate that criminals who take refuge in the UK do not invariably begin to live lives as model citizens. They may well reoffend. The EAW, or possibly a similar process, enables processes through which other states can secure their return, maybe before further crime has been committed in the UK. There is a significant public safety benefit to the existence of such mutual co-operation that is considered in this report—something that the United Kingdom has consistently supported.

The UK made 221 requests to other states in 2011-12 and 93 people were surrendered to us through that process, the existence of which has worked to our benefit. Looking back we know that an Algerian national, Ramda, was arrested in the UK in 1995 in relation to a terrorist attack on the Paris Metro. France sought extradition—a process that took 10 years. Mr Ramda spent those 10 years in custody in the United Kingdom at massive cost to the United Kingdom. When Osman was identified as a suspect in a failed bomb attack on Shepherd’s Bush Tube station in July 2005, his extradition under the new mutual co-operation processes saw him surrendered within three months. He was sentenced to 40 years’ imprisonment for conspiracy to murder. There is a stark contrast between the 10 years and the few months that mutual co-operation has enabled. The capacity for mutual co-operation is a very strong crime prevention measure that has the ancillary benefit of significant financial savings when one takes into account the average cost of keeping a prisoner for a year, which is estimated by the Ministry of Justice to be in the region of £40,000.

Under analogous measures we can seek: orders freezing property or evidence; confiscation orders; and evidence warrants to obtain objects, documents and data for use in criminal proceedings. We can transfer prisoners to serve their sentences in their home country, which brings benefits not only to the prisoners themselves, who are being restrained in a language and culture they understand, but also to their families who can visit them more easily. Non-custodial sentences can be carried out in the home country, again reducing the cost to the UK taxpayer of such criminal sanctions. None of these measures is perfect, but the report shows that there have been significant improvements.

Many other relevant systems have been created over the years, including Eurojust and Europol. They include the Schengen information systems and the potential for joint investigations across Europe. Even if we take into account the effectiveness of a European arrest warrant, surrender can occur only when the home country knows that the suspects are in a particular host country. If the home country does not know where the suspects are it cannot seek them. The host country does not know that it has a potentially dangerous criminal on its territory. The system for the exchange of criminal records, which includes provisions enabling a court in this country to be informed about and to take into account similar crimes in respect of which the accused has been convicted in other member states, is useful. The provisions provide protection for public safety in respect of people who are identified for one crime here because, following an exchange of criminal records, decisions which need to be made about bail et cetera will be informed by the individual’s previous records, thus enabling individuals who are a serious threat to public safety to be detained. Sometimes people question the value of the co-operation and the European criminal procedure processes, but the report demonstrates that it is advantageous to the United Kingdom that we are engaged as we are.

The 30th report does, however, state:

“Opting out of this legislation would have significant repercussions on UK criminal enforcement”.

The former Lord Chancellor stated his scepticism, which noble Lords can find in paragraph 114 of the report. The 30th report also states—the noble Lord, Lord Maclennan, referred to this—that:

“We share the scepticism that it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.

This report paints a picture of a process of co-operation in the European Union’s policy on criminal procedures which is generally positive and is operating according to the required standards in terms of compliance with the requirements of human rights law. In such circumstances the publication of the Government’s proposals for the protocol 36 arrangements should inform the debate which is now required on whether or not we should opt in. I would emphasise that there is no guarantee, as I understand it, that we would be able to opt back in: we can apply to opt back in. This has to be one of the more important decisions facing us at this time. It will rightfully be informed by the debate and the vote in both Houses and, indeed, by the report by the two sub-committees currently working on the issue. Mutual recognition and the trust which is consequential to it has proved, however, to be a significant protection for the people of the United Kingdom from both crime and terrorism.

Inheritance (Cohabitants) Bill [HL]

Baroness O'Loan Excerpts

Friday 19th October 2012 Lords Chamber

[Baroness O'Loan]

My Lords, the issue of what happens to cohabitants of long standing who are left behind when their partner dies is one which has caused problems for thousands of people over the years. The Law Commission undoubtedly recognised that in its 2011 report. The noble Lord, Lord Lester, does a public service in introducing this Bill, which is carefully worded by the Law Commission to provide limited protection for surviving cohabitants and their children and recognises the rights of surviving spouses and civil partners and any children. I am pleased to support the principles articulated in this Bill. This is not a new matter and there has been speculation in the public domain for many years about whether any Government would ever have the courage to tackle this issue. The Bill is concise and carefully drafted so as to give effect only to the recommendations made by the commission.

There can be little doubt that there are now many people for whom cohabitation is the preferred choice of living arrangements. The 2011 Office for National Statistics report states that the number of cohabiting couples rose by 34%, some 292,000, and that the number of partners in marriage or civil partnership with dependent children fell by 319,000. The evidence shows that, for many people, living together is not just a temporary trial-run situation but rather that there are people for whom this is a life choice. Some 2.9 million couples have made this decision, according to figures released in 2012. In 2011, 38 per cent of cohabiting couples were parents—the same percentage as married couples with children—and 31 per cent of live births in 2010 were to women cohabiting with but not married to their partner, up from 25 per cent since 2001. The choices made by such people have consequences, which may be way outside their comprehension or expectation and which will affect not only those in the cohabiting relationship but the children of such relationships. Our social structures are clearly changing.

We also have some 7.6 million marriages or civil partnerships without children. Not all marital relationships have children and not all cohabitees have previously been married. Intestacy could simply result in an estate reverting to the state because there is no surviving spouse or children or others entitled to inherit under intestacy. It is a wider issue than the children of an existing marriage. We talk loosely of common law marriage and, as noble Lords have said, there are assumptions that rights exist in this context. Yet for intestacy purposes there is no such category as common law marriage. If one partner in a cohabiting relationship dies intestate, his estate will be dealt with in accordance with the law, and the law makes no current provision for cohabiting partners or the children of such relationships. They have no inheritance rights and probably will not know that they have the right to make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for an order varying the distribution under the intestacy rules or indeed, if there is a will, under that will. As has been said, they may well be reluctant to pursue such an application, given the inevitable public disclosure of their situation, the costs, the familial and other unpleasantness that may ensue and the uncertainties of any such action.

All those difficulties will be compounded by recent changes to legal aid. Those who have married will no longer have legal aid support when the marriage that was for life proves not to have been so and to have broken down. As a consequence, there are many situations that will leave more people in the situation where they cannot effectively leave their marriage, and they will be left with no option other than cohabitation. What will happen at present in most cases where there is intestacy is that those people will have to leave the house that has been their common home, often for decades. They will be left without any inheritance where the deceased has not made a will to indicate how he or she intends to dispose of his or her assets. That will almost inevitably lead to significant hardship. The reality is that the majority of people in this country do not leave more than £250,000 when they die, and that significant hardship may well not have been what the deceased would have wished to see.

The Bill introduced by the noble Lord, Lord Lester, proposes not that all cohabitants should have a right to inherit but rather that only qualifying cohabitants should be so entitled. The definition of “qualifying partners” is tightly drawn to include those who have lived together for a period of five years or a couple who have lived together for two years and have a child or children born on or before the date of death of the deceased partner who was living with the deceased at the time of death, so there are many conditions that must be satisfied.

The periods involved are relatively short, given that the effect of the Bill may be to deprive those who under the current law would be entitled to inherit any estate. It is important to recognise that effect. There will be cases, however, where those who are entitled under current law to inherit have no knowledge of the existence of the cohabiting spouse and the children who would now become entitled to inherit. That is a profoundly difficult situation. However, this is about securing a balance in competing rights in order to bring greater equity to the situation.

I accept all the evidence that shows that marriages last longer than cohabiting relationships, but there are cases where, for a variety of reasons, people who have previously been married are unable to secure a divorce for very long periods and, as a consequence, may be forced into cohabitation. People are making choices that leave them vulnerable and, very often, significantly disadvantaged. On death, it may emerge that a couple whom everyone thought were married had in fact been cohabiting for decades. The surviving cohabitee will face a change in their life situation that will go far beyond the loss of their partner.

The Bill simply seeks to treat cohabiting partners in the same way as those who are married or in civil partnerships for the purposes of intestacy, provided that they satisfy the conditions, and to extend the range of individuals entitled to claim under the Inheritance (Provision for Family and Dependants) Act 1975. In the interests of consistency, it would be desirable that the proposed rights under Clause 1(7) extended not only to cohabiting partners but also to the issue of such relationships in the same way as new subsection (1C) of the Inheritance (Provision for Family and Dependants) Act to enable all the parents of children to benefit, including those children who were en ventre sa mere at the time of death.

I am a passionate supporter of marriage; I have been married for 37 years, and I worked for about 16 years preparing young couples for marriage. The Bill seeks to provide necessary protection. If the Bill is not the route, then I submit that there are very serious issues that require to be addressed in this context.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Wednesday 25th April 2012 Lords Chamber

[The Lord Bishop of Chichester]

My Lords, I strongly support the noble and learned Baroness in everything that she has just said. She has very starkly set out the figures and the likely impact of not sending this back to the Commons. She has quite rightly said that people could die as a result.

It is hard to engage in this discussion without having a rerun of the long debate that we have just had about the non-pursued Pannick amendment. It seems to me that we are in considerable confusion—and I have to say, with all due respect, that I do not think that the Minister helped us at all in this—about whether what is really at stake is the focus, orientation and purpose of the Bill, or whether it is a genuinely financial provision. We are really—I nearly used the expression “having the wool pulled over our eyes”. I feel profoundly unsatisfied and unpersuaded by what we heard earlier this afternoon.

This boils down to the question of what kind of society we want to live in, and that is why it was so important to pursue the amendment in the name of the noble Lord, Lord Pannick, earlier on. I know that we have lost that, but this amendment gives us one more chance to say to the House of Commons, “If we do not get this right, people—in numbers that we cannot calculate, but certainly there will be people, women and children mainly, but some men as well—who will die as a result”. I want to give the strongest possible support from these Benches to the noble and learned Baroness, Lady Scotland. I hope very much that we will support her this afternoon.

[Baroness O'Loan]

My Lords, the serious dangers of restricting legal aid in this area have been recognised by Members of this House and the other place and by the third sector as well as by the churches. The leaders of the Christian, Sikh, Jewish and Hindu communities have all written to the Lord Chancellor saying that the Bill risks leaving domestic abuse victims,

“in dire need of support but without the ‘right kind of evidence’ to secure it”.

They also warn that,

“arbitrary time-limitations on the validity of evidence risk leaving victims without access to support, even when they may still be at risk of further abuse”.

There is no accommodation for those who cannot secure admission to a refuge because it is full, or they have complex needs, or they have little boys who are older than 11, or perhaps because they fled an abusive situation, going to a friend or relative rather than to a refuge. Or even because, unable to access a refuge, they have still accessed non-residential domestic abuse services. There is no logic in excluding these women. Their need is not necessarily any less, and may indeed be greater, than those who manage to make it into the refuges.

Bringing time limitations on the validity of evidence in line with the civil standard would be an appropriate and fair move, not least, as the noble and learned Baroness, Lady Scotland, has said, because of the considerable time—if it ever happens—that it takes victims to be able to face legal process.

Without these changes our legal system will let down many of the most vulnerable people in our society. It will leave them potentially trapped in violent and abusive circumstances. The risks of that are potentially grave if not, as the right reverend Prelate said, fatal.

[Lord Macdonald of River Glaven]

My Lords, I spoke on the issue of domestic violence on a number of occasions during the Bill’s passage. As the noble and learned Baroness, Lady Scotland, said, domestic violence is a phenomenon that breeds insecurity, violence and, as we know, sometimes death. Perhaps as bad as any of those, it travels across generations, repeating itself over and over, in worse and worse spirals of crime. In recent years, as noble Lords know, very much progress has been made by people working in social services, by medical professionals, lawyers, judges and others, in recognising and identifying domestic violence, sometimes in prosecuting it—winning convictions more often than we used to—and in dealing appropriately with its victims.

My concern was that, in its original form, the Bill plainly failed to heed some of these lessons. It failed to recognise that victims do not always present themselves in predictable ways, and that the justice system should—indeed must—offer a broad, expansive and empathetic approach to this crime, and to the victims of this crime.

I had two particular concerns. First, the definition of domestic violence within the Bill was far too restrictive, much more restrictive than the definition that is employed by ACPO and the CPS regularly, successfully and happily and to the good understanding of all agencies involved, including the courts. Secondly, I felt strongly that the range of material allowed to evidence domestic violence so that there was a gateway into legal aid for its victims was far too narrow. I am inclined to agree that neither of these defects should ever have been in the Bill in the first place, and I was surprised, to be frank, that they were.

I am extremely grateful to my noble friend, who has been happy—perhaps I do not know how happy he has been—to have many conversations with me on this topic. I am grateful to the Secretary of State, the Lord Chancellor, as well. I believe that the Government’s response has been broad. I have enormous respect for the noble and learned Baroness who, when she was a distinguished Attorney-General, was an inspiration to prosecutors on this topic, as well as on many others. Her distinguished period of office is remembered with great affection in the CPS.

The Government have adopted the ACPO-CPS definition, for which we were asking since before Report stage, and included it in the Bill. I commend them for that. They have also broadened significantly—with respect, more significantly than some noble Lords’ speeches have allowed—the categories of evidence that will trigger legal aid in these cases for the victims of domestic violence, including evidence from social services and medical professionals in addition to the other gateways which existed, and where the court wishes to consider a finding of fact that domestic violence exists so as to grant legal aid, it can consider matters such as police call-outs and referrals to domestic violence centres, as the noble and learned Baroness, Lady Scotland, has called for.

After considering the Government’s response with as much care as I can, I have concluded that this has been a strong example of a Government who were clearly—and who, with respect, had been badly in error, in my view—listening to the concerns of this House and responding. For my part, I shall support the Government on this issue.

--- Later in debate ---

[Lord McNally]

My Lords, the noble and learned Baroness, Lady Scotland, is a powerful advocate. Throughout, she has presented a case against the Government which I am sure has swayed a number of your Lordships. That is why I sometimes get a little bit exasperated. For example, the right reverend Prelate says that the wool was pulled over his eyes, but I assure him that I made every effort to make clear where we are going, how we are going there and why we are going there on this Bill. Rather like the outgoing Labour Government in their manifesto, we sought to cut legal aid. The noble and learned Baroness read out a load of statistics that suggested that this Bill might achieve that purpose. I point out that part of our approach from the very start was to try to move away from litigation to arbitration, mediation and the alternative settlement of disputes, and we will do so in the various parts of the legal system that were covered by legal aid.

I worry sometimes when I listen to the language that is used. I heard what the noble Baroness, Lady O’Loan, said, and I read in a Sunday newspaper that women who could not get into refuges would be denied legal aid—as if that was it, and they were like Oliver Twist being turned away from the workhouse door. The noble Baroness knows that that is not true.

[Baroness O'Loan]

My Lords, with great respect, I did not say that women who could not get into a refuge would necessarily be excluded, but it is a fact that that is one of the forms of evidence. If you do not have either that form of evidence or the other forms of evidence that are required, you will not get in.