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.

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[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.

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[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Alton of Liverpool]

My Lords, as my noble friend Lady Howe rightly said a few moments ago, other amendments later in our proceedings will return to the general question of legal aid. I will reserve some of my remarks for that later group of amendments, as my noble friend indicated that she, too, would do. However, I would be sorry to see the amendment proceed without as many voices as possible being raised around your Lordships’ House in support of what the noble Baroness, Lady Doocey, said today. As the noble Lord, Lord Howarth, intimated, this is of central concern. The noble Baroness was right about this at Second Reading and she was right to bring this amendment before the House today. I hope that the Government will reflect on the arguments that were laid before us.

At Second Reading I mentioned that an organisation of which I am a patron, the National Association of Child Contact Centres, had written to me expressing concern about the number of volunteers who are withdrawing from voluntary service because of the pressures that we are placing on them. That, in tandem with the reduction of resources being made available to Citizens Advice and other voluntary organisations because local authorities have to cut back on their funding, should cause all of us to stop and ask the kind of questions that the noble Lord, Lord Newton, properly put to us earlier. I am sure that the Minister shares many of these concerns. He would not want to see—any more than any noble Lord would want to see—people with spina bifida, autism, cerebral palsy or any number of physical or mental disabilities placed in a position where they cannot get proper or adequate representation or advice in order to pursue their cases. I hope that he will be able to tell us whether he has had direct discussions with organisations such as Leonard Cheshire Disability and Scope; and I hope that before coming to a final conclusion on these issues he certainly will.

My noble friend Lord Wigley was right to remind us at the outset of the increase in the number of complex questions that are now being placed before people who are dealing with disabilities. During my time as a constituency Member of Parliament I, like my noble friend—although we had very different constituencies; one in rural Wales and one in the heart of the city of Liverpool—was confronted again and again, just as the noble Lord, Lord Phillips, was when he worked as a volunteer in legal aid centres or on telephone lines, with complex and difficult questions. The noble Lord, Lord Bach, reminded us that these days the advice runs to more than 7,000 pages in a handbook. It is impossible to deal with these questions when, as we heard, they are incredibly complex and changing day by day, even as your Lordships consider them.

I was struck by a leading article in a Sunday newspaper that commented on the anachronistic nature of your Lordships' House. It went on to say, thank God for these anachronisms because last week in debates on the Welfare Reform Bill it was the anachronistic House of Lords that stood up for the voiceless and powerless people for whom no one else would speak. I suspect that your Lordships will have to perform the same role again.

[Baroness O'Loan]

My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.

There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.

The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.

[Lord Bach]

My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.

Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.

Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.

It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.

How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.

The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.

There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.

There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 16th January 2012 Lords Chamber

Moved by

[Baroness O'Loan]

33: Schedule 1, page 116, line 1, at end insert—
“Children affected by civil and family law proceedingsCivil legal services provided to a person having dependent children related to—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security;(c) all areas of employment law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) consumer law;(i) all areas of consumer law not otherwise covered in this Schedule;(j) appeals to the Criminal Injuries Compensation Authority;(k) reviews or appeals under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; or(l) appeals to the Supreme Court.”

[Baroness O'Loan]

My Lords, I have put my name to the amendment, which seeks to restore families with dependent children to the list of those eligible for legal aid and advice in respect of a range of legal issues that can be fundamental to the ability of a family to function. The proposed changes in the Bill, and in other Bills before your Lordships’ House such as the Welfare Reform Bill, which was referred to before the break, will have a disproportionate effect on those families in our society who are the least advantaged, most marginalised and most deprived. The number of those who would benefit from the amendment is necessarily limited by the terms and conditions under which legal aid and advice is available, but they may well be the people who are least able to contemplate the complexities and mysteries of conditional fee agreements, of lawyers, and of the costs of the ATE insurance premium in cases that they may have to fight.

We in this country have to make many decisions about how we spend our money. In November last year, the Government affirmed their commitment to spend £200 million on an airstrip in the south Atlantic, for St Helena island, which has 4,000 inhabitants. As we contemplate our reasons for doing that and observe similar expenditure, we should ask ourselves: what would be the consequences of removing access to legal aid from the poorest and most marginalised families in our country? The Minister spoke earlier today of the hard choices faced by government. They are infinitely harder for those upon whom these choices and legislative changes will fall.

Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres that are estimated to provide services at a cost of between £150 and £200 per case. Justice for All, a coalition of some 4,000 organisations, has estimated that approximately 140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and that at least 6,000 children will be deprived of legal aid altogether. It is also estimated that 57 per cent of those who will no longer be able to access specialist advice on welfare benefits are disabled—about 78,000 people. Where those disabled people are part of families with dependent children, or where dependent children are living in a family, they will encounter even more marginalisation as a result of the consequential difficulties of access to specialist advice.

The Coalition: our Programme for Government stated:

“The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society”.

We know from the recent Save the Children report that 45 per cent of parents living in severe poverty are considering cutting back on food to pay energy bills. Many families with very low incomes, lacking job stability because of the area in which they live, facing deprivation on a scale of which most of us have little experience and living in overcrowded accommodation, nevertheless provide a stable and strong base from which to launch their children into the world as active, contributing members of society. When they face legal challenges, they should be supported, because it is the right thing to do and also because if we do not, they may find themselves unable to maintain their family lives and will inevitably become a cost to the state.

I want to say a word about private family law. Great concern has been expressed about the fact that private family law cases have been excluded from legal aid provision. Not all cases of family breakdown are susceptible to mediation or even to the type of collaborative law project discussed earlier. There will inevitably be cases where legal aid and advice is required by families. Concerns have been raised about cases in which a child is unlawfully removed from one part of the United Kingdom to another, and about cases in which a spouse has suffered prolonged violence during a relationship or has other problems, such as extreme poverty, illiteracy or even as simple a thing as no one to mind the children. That person may not have the capacity personally to challenge the other in the courts to try to recover the child. If it has to be done before the courts, under the proposed arrangements, it could result in two spouses both personally conducting their cases in court—surely a recipe for all sorts of failure in the delivery of access to justice.

Legal aid is not being withdrawn for international child abduction cases. The effect of moving a child from Barnstaple to Belfast may be as difficult as moving a child from Barnstaple to Brittany. In such cases, the safety of the child may be at risk. There is the risk of psychological and emotional damage because of their inability to contact the second parent, or the risk that the parent who looks after the child ensures that the child has a distorted and damaged view of the action of the other parent.

To make a blanket provision excluding all private family law cases is neither proportionate nor necessary. The ultimate result will inevitably be a significantly enhanced burden on the individuals concerned and further involvement of the various statutory agencies, which carries its own cost.

We discussed benefits just before the dinner break. I therefore do not intend to say any more, other than that benefits are not something extra to a family's income, they are the family's income. They are that which enables the family to function, and there are good financial reasons to continue to provide the current low-cost legal assistance which has been available to date.

In cases of employment, as with civil litigation, access to legal aid permits a screening of cases, which facilitates the handling of such cases in a reasonably effective manner. The removal of access to pre-tribunal advice will have consequences similar to those which are being predicted consequential to the removal of legal aid for civil litigation. People will bring actions before tribunals without advice and, because of their lack of knowledge of tribunal procedures and employment law, there will undoubtedly be delays, additional adjournments and a necessity for the tribunal chair to ensure that litigants have equality of access in the absence of appropriate representation, particularly where the respondent is legally represented, as is the case in most employment tribunal applications. The cost of providing this service will inevitably rise.

There is a significant risk that the removal of legal advice in such cases could result in an awareness that employees have much reduced opportunities to assert their legal rights, with a consequent lowering of general standards of protection in employment. Those who face serious exploitation or discrimination at work may ultimately end up unemployed and on benefits. That could be the beginning of a downward spiral for many families—a situation in which today they could be successfully protected through the tribunal process.

Although housing advice is being retained for those at imminent risk of homelessness, there will nevertheless be situations in which people have serious housing benefit problems or other housing-related issues. One example given by Justice for All involves a woman who had previously attempted suicide and her 11 year-old daughter. They were living together and both were receiving psychiatric help following the suicide attempt. They were subjected to a campaign of harassment by newly arrived neighbours. There was verbal abuse, poison-pen letters, and endless complaints about the puppy which they had happily owned but which had to go because of complaints about noise. Shelter, using legal aid, was able to get them rehoused. People in this situation have been known to feel, as this lady did previously, that their only escape lies in suicide. What would this woman have done had she not been able to go to Shelter for help?

Many people in this country are living on the minimum wage, which amounts to less than £200 a week, or on benefits such as jobseeker’s allowance, where the weekly benefit is £53.50 for a person under 25 or £67.50 for a person over 25. I ask noble Lords whether they could live on even £67.50 a week, after housing benefit of course. People in this situation live from day to day and from week to week. Planning ahead is not really possible. Meeting the costs of sudden illness or a reduction in working hours, which is happening to many people across the country, is a burden too far. Pay-day loans and other debt solutions are an unwarranted and disliked solution in such circumstances. They simply tie the borrower into the debt spiral, often with massive rates of interest, and the borrowers know this but they have nowhere else to go.

Debt causes stress and illness, and it leads to conflict and tension in families. People who find themselves in intractable difficulties despite their wish to work need help, such as that offered by money advice agencies, to access benefits to which they are entitled, to make a manageable agreement to repay their debts and ultimately to avoid losing their homes. If such advice and help is not available in the early stages, the consequences are almost inevitable. The cost to the public purse of the splitting up of the family is equally predictable in terms of sickness, housing costs, welfare benefits and access to medical services.

I want to say a brief word about immigration, which I have also included in the amendment. Trafficked persons and children would have no access to legal aid under the Government’s proposals. Refugees would not have access to advice about cases involving bringing members of their family to safety, and there would be no legal aid for many immigration judicial review cases, thereby reducing the accountability of the UK Border Agency.

Clinical negligence we have discussed at length, and I shall say no more other than that the King’s College, London, report is fairly persuasive that the ultimate cost could be £18 million, consequential upon the increased costs of ATE insurance.

There are compelling reasons to provide legal aid and advice for those families who would qualify in these circumstances. Acknowledging these issues, the Government have announced £20 million of funding to support people affected by the cuts. However, this is limited to the current financial year. There will be no capacity for sustainability in this measure. CAB research, which has not been challenged, has shown that for every £1 of legal aid advice and expenditure, the state potentially saves £8.80.

It is very clear that the attempts to remove access to justice from the most marginalised and deprived of our families will cause immense damage. Families with dependent children face not only the challenge of trying to make money stretch and to remain healthy, but also the challenge of producing the citizens of the future. If those children grow up knowing that their parents have no access to justice, how can they believe that this society cares for its weak and its vulnerable? How many families will splinter under the combined weight of lost jobs, lost expectations, reduced benefits, rising interest rates, and our failure to provide them the access to justice which will enable them to be, in the Government’s words,

“strong and stable families … the bedrock of a strong and stable society”?

I beg to move.

[Baroness Benjamin]

My Lords, I have put my name to Amendment 33, which seeks to retain legal aid in cases where a child will be affected by the outcome of a case brought by a parent or guardian. Many children are affected by civil law problems and family cases involving their parents or guardians, even though they themselves are not the applicant or claimant. The Government have said that,

“where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]

However, this is not in fact the case under the proposals in the Bill. I know that the Government recognise the importance of legal aid funding in a range of cases where children’s interests are paramount, which is good news. There are, however, still areas that cause grave concerns to many charities and organisations across all parts of society, and which unfairly affect children. They are: housing; welfare; immigration; domestic violence; clinical negligence; criminal injury compensation; and education. This will probably be due to their parents’ lack of financial resources and ability to navigate the legal system. Their parents may also be hindered by disability, language barriers, poverty, and mental health issues. These are no good reasons for children to be penalised.

Almost 150,000 children under 18 will lose the civil law and family law protection provided by legal aid. They are currently helped by legal advice or representation in court to deal with problems that are no fault of their own. Children are the named party in 6,000 cases per year that will no longer qualify for legal aid, and are financially affected by more than 140,000 cases per year involving their parents. The amendment would ensure that where dependent children will be affected by a case their parents are being represented in, legal aid will continue to be available subject to existing rules on financial suitability and the viability of the case.

For welfare benefit advice, currently 135,000 advice sessions per year are funded by legal aid. Under the Bill’s proposal, however, legal aid’s support for benefit advice is being abolished. In tribunal appeals where the applicant has legal advice, 55 per cent of all Department for Work and Pensions decisions to cut benefit are found to be wrong and are overturned. About 36,000 children are affected each year who come from the lowest income families, for whom losing the benefits they are entitled to will make a significant difference to their lives. As I have often said, childhood lasts a lifetime and the adversities children go through when they are young will in most cases stay with them for ever and affect their adult lives.

--- Later in debate ---

[Lord McNally]

I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.

Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.

Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.

The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.

However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.

Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.

The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.

That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.

[Baroness O'Loan]

I thank the Minister for his comments, and I am glad to hear that he will reflect further upon this very wide-ranging debate, in which the consequences of the proposed legislation have been so well articulated on all sides of the House. I am not persuaded by what the Minister has said—that it is right, necessary or proportionate that there should be a whole-scale removal of the availability of legal aid to families with dependent children, when there is such a huge range of issues of vital importance, such as basic family income.

The Government suggest that we may save £270 million, but we know already that those figures are very questionable. Careful analysis suggests that the consequences of this part of the Bill will be a much greater involvement of social services, housing authorities, welfare services, the criminal justice system, education services, and, I fear, ultimately the health service.

The Minister has not persuaded me that the drafters of this Bill have had sufficient regard to the needs of the child and of the family to which the child belongs. We may need to return to the matter on Report. For the present, I beg leave to withdraw.

Amendment 33 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness O'Loan]

My Lords, there can be no doubt that the current arrangements represent, as the Minister said, an “unignorable problem of affordability”. However, even in that situation the current arrangements do not enable access to justice by huge sectors of society who must make the decision not to bring legal proceedings, based not on the merits of their case, but simply on the basis that they do not have the resources to fund litigation. So the current situation is far from perfect. The Bill as drafted will in some respects exacerbate a very difficult situation. It will not be compliant with Lord Justice Jackson's insistence that there should be,

“no further cutbacks in legal aid availability or eligibility”.

Elements of the Bill are welcome. I refer to the proposed introduction of a new offence of squatting in a residential building—a problem which became quite widespread as it was realised that it is possible to occupy a building without any possibility of criminal sanction. The costs of such occupation in terms of property damage and the consequential civil legal proceedings to eject a party can be very significant and can cause massive distress. This provision is clearly a common-sense and necessary improvement to the law. The only question is why it has taken so long to get there.

I wish to address the issue of the extent to which the current proposals will restrict access to justice for the most vulnerable and marginalised members of our society in circumstances in which they find themselves the victims of crime—of clinical negligence, professional negligence or fraud. I think of those who are very poor; those who have to cope with the consequences of disability in all its forms; of the 20 per cent or so of our population who effectively cannot read and write; of prisoners, who are disproportionately represented among those with mental health and literacy difficulties; and of immigrants for whom access to justice was completely unknown in their home country and who have come to this country believing in the rule of law and the principles thereunder to enable access to justice. The current civil legal aid provisions are very restricted but they do allow people with very limited assets to bring the proceedings that are necessary to assert their rights. The evolving conditional fee arrangements provide some access to justice for those who are not entitled to legal aid but who can seek redress in the courts through alternative arrangements.

I am no fan of the ambulance chaser. Indeed, I would prohibit the type of advertisement to which I—like many other noble Lords, I am sure—have been subjected, suggesting that I have suffered an accident and the sender of the text will provide me with legal representation to enable me to secure compensation. However, the Access to Justice Action Group has stated that Part 2 of the Bill will affect the capacity of some 600,000 ordinary people to get access to justice. It states that there will be 25 per cent fewer claimants and that the remaining 75 per cent will lose up to 25 per cent of their compensation. This will almost inevitably, in medical cases, result in additional costs to the National Health Service. Have those costs been factored in to the overall savings said to be consequential on the proposed changes?

The reality for a parent who has given birth to a child who has suffered significant injuries as a consequence of medical negligence is very grim. Such parents face, even in the present situation, an almost insuperable problem. They must learn to come to terms with the consequences of the alleged negligence in terms of their baby's ability to function. They must enter a world which they hitherto never knew of clinical process and, in some cases, almost constant emergency situations. They must learn to do that which doctors and nurses normally do, to preserve the life and function that their children have. Often, they will be constantly exhausted and frightened. They may have to care for their other children while coming to terms over years with the ongoing, developing consequences of that medical negligence. In the midst of all this, and of all the consequential visits to doctors, occupational therapists and physiotherapists, as well as to those who provide wheelchairs and other aids and adaptations for those with disability, they must contemplate the need to commence legal proceedings to seek compensation, which will enable them to secure proper care for their children in the future.

Similar situations will arise for those whose adult friends and relatives have suffered catastrophic damage as a consequence of medical negligence. They too will have to come to terms with a whole new way of life if they decide to become the carer for the injured party. By so doing, they will save the state a lot of money, because the state will not have to provide residential care. What too of the situation of those with an industrially-acquired disease and the widows and children of those who die at work as a consequence of an employer’s negligence?

In the midst of all the grief, the confusion, the fear and the exhaustion, they will need to know how long they have to initiate legal proceedings. They will need to know when it is best to do so, because the consequences of medical negligence may take a little time to emerge. They will have to contemplate the costs of expert medical and other technical evidence to support and explain the situation to them. They will need the capacity to keep their claims going through years of litigation—and all this without legal support. Is this possible?

All the while, in many negligence cases the costs of the defendant are borne by the public purse. We fund the defendant, but we will refuse to fund the complainant. The effect of the current proposals will be that yet another two-tier system will emerge. There will be those with sufficient resources to bring actions with legal representation, for whom compensation may ultimately be decreed and consequentially a higher standard of care. Then there will be those whose parents or carers just cannot contemplate how to bring such proceedings and who will ultimately suffer the consequences in terms of reduced living standards.

As the noble Viscount, Lord Simon, said, where the injury has been suffered as a consequence of the failure of state-provided care, it is even more necessary to provide an accessible remedy in law. There will have to be revision to this section of the Bill. The provision for exceptional cases will not meet the needs of these claimants. I also echo the words of the noble Lords, Lord Pannick and Lord Newton, about the court costs resulting from the appearance of an unrepresented litigant. I echo too those who identified the serious problems which will emerge from the withdrawal of legal aid for welfare cases.

There is one other matter in the Bill to which I will refer briefly. It is the matter of how the law deals with those offenders who are dangerous and violent and who will be sentenced, but in respect of whom there is an enhanced need for public protection which must be dealt with in a proportionate manner. This matter was dealt with in Northern Ireland by means of the Criminal Justice (Northern Ireland) Order 2008, which created indeterminate custodial sentences. Under the legislation, a judge contemplating an ICS has first to consider whether an extended custodial sentence,

“would be adequate for the purpose of protecting the public from harm”.

The purpose of that law is to ensure that the ICS is imposed only where there is no other proportionate way to protect the public. Mr Justice Hart stated in the case of R v McGleenon this year:

“Common to each of these four sentencing options (determinate sentence, ECS, ICS, life sentence) is the need to consider whether the accused presents a danger to others by virtue of being a significant risk to members of the public of serious harm in the event that he were to commit offences of the same or a similar nature in the future”.

In that case, Hart imposed an indeterminate custodial sentence with a minimum term of five years’ imprisonment, meaning that the defendant would not automatically be released after the minimum term has elapsed, but rather that he would be released when the parole commissioners are satisfied that it will be appropriate to release him.

It appears to be the view in Northern Ireland that the combination of judicial discretion as to the question of dangerousness—similar to that applied in England and Wales—and the requirement to consider an ECS before imposing an ICS has meant that the number of public protection sentences has grown slowly, far lower than anticipated. Consideration of the operation of that system may assist in providing a public perception and reality of protection while ensuring that there is not a disproportionate use of the ICS.

Referendums: Constitution Committee Report

Baroness O'Loan Excerpts

Tuesday 12th October 2010 Lords Chamber

[Baroness O'Loan]

My Lords, this is a carefully reasoned and well evidenced report on the use of referendums. The questions addressed by the committee are very specific and address the range of key issues fundamental to this debate.

Perhaps the most compelling conclusion is that contained in paragraph 94 of the report, which states:

“Notwithstanding our views that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues”.

The committee went on to give us an indication of what it regarded as fundamental constitutional issues. The list was not definitive, but it was strongly indicative of the boundaries which the committee considered reflect the appropriate use of referendums.

Those referendums which have taken place within the United Kingdom since 1973 fall largely within the definition of constitutional issues, although it is questionable whether they were all fundamental constitutional issues. Perhaps the most significant one for me was the Belfast agreement in 1998, in which 71.1 per cent of those polled gave community consent for the continuation of the Northern Ireland peace process on the basis of the agreement. The road to peace was long and hard, both before and after the agreement, but the referendum and the breadth of the provisions of the Good Friday agreement formed a sound basis on which the community could embrace the proposed mechanisms for peace. Although we continue to be subject to paramilitary activity, the majority of the population are focused on the economic and social development of Northern Ireland. I would argue that that is the proper use of a referendum.

The committee noted the claimed positive features of referendums, but was persuaded by the counter arguments to recommend limitations on their use. The limitations are well articulated in the report: that referendums tend to be dominated by elite groups—we have certainly seen that; that they can have a damaging effect on minority groups; that they may block progress, but they do not settle the issue anyway; that they fail to deal with complex issues; that they tend not to be about the issue in question, particularly when the issues are very complex; that voters show little desire to participate in referendums; that referendums are costly—already today several noble Lords have mentioned the £120 million cost of a national referendum; and, most importantly, that they undermine or have the potential to undermine representative democracy.

The committee concluded that there are significant drawbacks to the use of referendums. It noted that,

“we regret … the manner in which referendums have been used, often as a tactical device, by the government of the day”.

The committee recommended that, where possible, cross-party agreement should be sought on the circumstances in which it is appropriate for referendums to be used. Yet, as has been said by noble Lords today, we do not have cross-party agreement on the current proposed referendum and I am not even sure that there is coalition Government agreement on the proposed referendums.

There are many complex issues which evoke calls for referendums. For example, in response to rising crime levels there were calls for the return of birching in the 1950s and since. There are regular calls for the reintroduction of capital punishment and for the banning of immigration. There are calls also for a referendum on the issue of assisted dying. These are profound and fundamental questions. Should we have referendums on all these issues as well?

I want to use the issue of assisted dying to explore this matter through the evidence given to the committee. There are opinion polls which regularly indicate that a majority of people would favour a change in the law on assisted dying, but that is not, of itself, a sufficient reason for changing the law. Few would suggest that Parliament's role is simply to legislate in accordance with what opinion research suggests. Obviously, public opinion has to be given due weight by legislators, but like everything else it has to be examined thoughtfully and its significance assessed. When one speaks to the disabled and the terminally ill, they use one word to describe their reaction to the possibility that the state will license killing and that word is fear. They are afraid. Despite the popular calls for euthanasia or assisted dying, none of the disability organisations, and none of the organisations for sufferers from diseases such as MND or MS, has called for it.

In reality, referendums are helpful only in telling us what individuals say in response to a given question. They do not tell us much, if anything, about the respondents themselves, about how knowledgeable they are, for example, on the subject in question and how strongly their views on the subject are held.

Like so many issues, assisted dying is a highly complex issue, transcending a number of specialised areas of expertise, including law, medicine and ethics, on which few people can be expected to have any in-depth knowledge. To say that is not to argue that the opinions of people who have an incomplete understanding of any subject should be of no account. We all have opinions on subjects about which we may know little or nothing, but we cannot seriously expect our opinions to be translated into legislation simply because we hold them. Sound law-making has to be founded on solid evidence and objective assessment as well as on public opinion. It is Parliament's role to examine the evidence on any particular issue in an objective and dispassionate manner and to reach balanced conclusions.

For example, the noble and learned Lord, Lord Mackay of Clashfern, took evidence from more than 140 expert witnesses in four jurisdictions before reporting. We also had lengthy debate on the Joffe Bill. That is quite different from the sort of spin and media treatment that issues will receive in the media, which is the source of many people’s knowledge of any subject and which will lead, almost inevitably, to a given result in the polls.

The committee examined initiative processes which allow citizens to propose statute laws, constitutional amendments or broad policy principles or to challenge statutes and amendments passed by representatives. The committee was not convinced by the arguments in favour of those initiatives.

Reference was made in the evidence to the experience in Oregon, where assisted dying was legalised, after a lengthy and complex legal process. The Act was first passed in November 1994 by a margin of 51 per cent in favour and three years later it was implemented after extensive and multiple legal proceedings. The committee heard evidence from Dr Tolle of the Oregon Health and Science University Centre for Ethics in Health Care. She said this about the vote which introduced the Death with Dignity Act.

“The day after the vote I wrote an article … In that article I described the fact that when people voted, and remember you cannot change anything, you vote yes or you vote no on an initiative, many people were voting about a very tragic experience a loved one had had in end of life care and saying, ‘I vote for anything different’. Many would say, ‘What you have said is too narrow for me, I would include poor pain management, I would include inadequacies in the hospital, I would include poor conversations and planning, I would include much more in the basket and then say yes’. In some ways it was a vote of no confidence about some aspects of end of life care”.

There is a cautionary note there on the limitations of the use of a referendum. Those limitations are well recognised by the committee in its references to complex issues.

The complexity of the arguments in relation to assisted dying is a clear example of why the committee has drawn those conclusions. Complex issues are not amenable to decision-making by a yes/no answer to a question. I am pleased, therefore, to see the government response to the report, which indicates that they will not support the wider use of referendums, but I am a little perplexed that they are holding a referendum which appears to be presenting the people with the choice of alternative voting or first past the post, with no reference to the other options—I think that there are about a dozen options for alternative voting systems—particularly the single transferable vote, which we have in Northern Ireland. It seems to me that deciding to offer alternative voting in a referendum but not to discuss issues of the House of Lords or to offer other options is not consistent with the Government's broader response to the committee's report.

In conclusion, responsibility for decision-making on why and when we need a referendum is Parliament’s, and only those decisions which are of a fundamental constitutional nature should be put to a referendum. For the rest, Parliament should continue to exercise its historic and profoundly important functions.