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Coroners and Justice Bill

My Lords, I will be the first to admit that this is a wide-ranging Bill, but I make no apology for that. The Ministry of Justice and its partner agencies face many challenges. There are, quite rightly, increasing demands for more effective, transparent and responsive public services, enhanced public protection, improved access to justice and a strengthening of rights and responsibilities. The Bill will contribute to each of these outcomes. It will help criminal justice agencies to focus on the needs of victims and witnesses, particularly the most vulnerable. It will strengthen the protection of the public through changes to the law on pornographic images of children and the sentencing of terrorist offenders. It will provide a more accessible and responsive coroner service for bereaved families. It will also help safeguard the public’s right to have their personal information protected and reinforce the responsibilities on data controllers to comply with the data protection principles. These are all high aspirations, but there is no reason why we should not strive to fulfil them and this Bill will play a part in that endeavour. I turn now to the detailed provisions in the Bill. Part 1 lays the foundation for a wide-ranging reform of the coroner and death certification systems. The Shipman inquiry and the fundamental review of coroners and death certification both advocated a radical overhaul of the current arrangements. Two changes are essential and are at the core of the provisions in Part 1. The first is to place the needs of bereaved families at the heart of the coroner service and the second is to restore public confidence in the protection afforded by the death certification process, so the Bill will introduce a number of key reforms of the coroner system. Bereaved families will, for the first time, have a clear legal standing in the investigations process, with new rights of appeal against coroners’ decisions. The Charter for Bereaved People, a draft of which has been published alongside the Bill, will set out clear national standards of service for those who come into contact with the reformed coroner system. While maintaining a locally delivered and funded service, the Bill introduces for the first time national leadership through a Chief Coroner. The Chief Coroner will be responsible for setting national standards, including those for training, supporting local coroners and hearing appeals against coroners’ decisions. I want to give your Lordships notice of some government amendments that I intend to bring forward in Committee which will introduce a further element to this national structure. Aside from their heavy responsibilities for the investigation of certain deaths, coroners retain one residual function dating back to their 12th century origins; namely, the investigation of treasure finds. Following the debates in the other place, we are persuaded of the case for establishing a national coroner for treasure so that in future local coroners can devote all their time to their core responsibilities. I hope this decision will be particularly welcomed by the noble Lord, Lord Redesdale, my noble friend Lord Howarth of Newport and other noble Lords who have played an important role in this field and by their colleagues on the All-Party Group on Archaeology. The Bill will also remove archaic restrictions on the transfer of investigations between coroners’ areas so that inquests may more readily be held closer to the family of the deceased. Our reforms of the death certification system will see the introduction of a uniform process that is applicable irrespective of whether a body is to be buried or cremated. Central to these reforms will be the introduction of medical examiners who will independently verify medical certificates of the cause of death and provide medical advice to local coroners. Finally in this part of the Bill are the provisions relating to the certification of coroners’ investigations. We introduced these provisions to address a very real issue; namely, how to ensure that there is an Article 2 compliant investigation in those very exceptional and rare cases where there is highly sensitive material, such as intercept evidence, that cannot be made public. That problem remains. But, as my right honourable friend the Lord Chancellor announced on Friday, we have concluded that the provisions in Clauses 11 and 12 do not command sufficient support and should be withdrawn. Where it is not possible to proceed with an inquest under the current arrangements, the Government will instead consider establishing an inquiry under the Inquiries Act 2005 to ascertain the circumstances in which the deceased came by his or her death. Part 2 makes a number of important changes to the criminal law. I know that a number of noble Lords will be disappointed that we are not proceeding with a wholesale reform of the law on murder. However, we judge that the reform of this particularly sensitive area of the criminal law should be taken forward in a staged approach. The most pressing areas in need of reform are the partial defences of diminished responsibility and provocation, in order to ensure more just and equitable outcomes in individual cases. With regard to provocation, the new "loss of control" partial defence will ensure that a defendant who has killed in anger will be able to plead the partial defence only in extremely grave circumstances. It also makes clear that, in this day and age, sexual infidelity on the part of the victim can never constitute sufficient grounds for reducing murder to manslaughter. On the other hand, a person who kills in response to a fear of serious violence should be able to put forward the defence on that basis, rather than seeking to shoehorn it into a defence based on killings in anger. The changes to the partial defence of diminished responsibility will ensure that this area of law is modernised and properly takes into account the needs and practices of medical experts. This is as it should be, given that it is the evidence of such experts which is crucial to determining whether any claim of diminished responsibility is properly made out. The changes to the law on assisting suicide are intended to increase public understanding that the law applies to the internet as it does offline. Our aim is to simplify and update the law in this area and not to change its scope. There will be many in this House who want to see a change in the law with a view to legalising doctor-assisted dying in certain circumstances. Equally, many of your Lordships would be emphatically opposed to such a change. This House has debated this issue on a number of occasions, including in the context of Private Members’ Bills introduced by my noble friend Lord Joffe. It is an issue that stirs passions on both sides of the argument and I can understand why a number of noble Lords would welcome the opportunity for a fresh debate. If I may give some cautious advice, though, the issue of doctor-assisted dying is too important and too profound for it to be slipped into a passing government Bill. It warrants a Bill of its own and, in the Government’s view, a Private Member’s Bill at that. Clause 61 sees a return to our debates last Session on the new offence of incitement to hatred on grounds of sexual orientation and, in particular, to the question of whether it is necessary to include a provision purporting to protect freedom of expression. The House will recall that the consideration of the need for such a provision had to be abruptly brought to a close because of the need to secure early Royal Assent for the Criminal Justice and Immigration Bill, but we made it clear at the time that the Government would return to this issue. The offence of inciting hatred on grounds of sexual orientation has a very high threshold. The offence will be made out only where a person uses threatening words or behaviour with the intention of inciting hatred. There are no circumstances in which the right to freedom of speech should justify such behaviour. The additional provision inserted "for the avoidance of doubt" is unnecessary and could serve to cause confusion about the ambit of the offence. In our view it should be removed. The provisions in Part 3 deal with witness anonymity orders. They also mark a return to familiar territory which we considered last Session. During the passage of the emergency Criminal Evidence (Witness Anonymity) Bill, we acknowledged that there needed to be a further and fuller opportunity to consider the detail of the statutory scheme to protect the anonymity of vulnerable witnesses, while safeguarding a defendant’s right to a fair trial. Chapter 2 of this part re-enacts, with only minor modifications, the provisions of that 2008 Act. That Act has now been in operation for some nine months, and all the indications are that it is working well, including the arrangements for the appointment of special counsel where one is needed. Chapter 1 of Part 3 seeks to augment the provisions in respect of witness anonymity at trial with provision for investigation anonymity orders. The purpose of this new order is to encourage witnesses to come forward with information to the police, by providing additional reassurance that their identity will be protected. I, of course, freely acknowledge that the investigation anonymity order is innovative. How useful a tool it will prove to be for the police remains to be seen. That is why we have, at least initially, limited the availability of these orders to witnesses to gang-related homicides, but it is incumbent on the Government to explore all possible means to rid our inner cities of the scourge of gun and knife-fuelled gang violence. These orders will be experimental, but an experiment which the police service tells us is worth trying. Part 4 establishes the Sentencing Council for England and Wales. In doing so, the Bill will implement the unanimous and majority recommendations of the Sentencing Commission Working Group, chaired by Lord Justice Gage. In bringing together the functions of the existing Sentencing Advisory Panel and the Sentencing Guidelines Council, the Bill will streamline the process of producing sentencing guidelines. However, we believe that the council will be more than the sum of the two bodies it replaces. The council will have new duties to monitor the effect of its guidelines and to assess the resource impact of the guidelines and of the Government’s policy and legislative proposals. At its core, the recommendations of the Gage report and, in turn, the provisions of the Bill, seek to ensure greater transparency, greater consistency, and greater predictability in sentencing. Greater transparency is needed so that there is clarity and openness through guidelines as to how offenders might expect to be sentenced. Greater consistency will ensure a more even application of sentencing guidelines, allowing for appropriate judicial discretion. Greater predictability will enable Government and Parliament to foresee, with a reasonable degree of accuracy, the total impact on prison and probation resources of sentencing practice, guidelines and proposed legislative changes, and to plan accordingly. Let me be clear on what these provisions are not about. They are not about tying individual sentencing decisions to the availability of prison places. Nor are they about forcing judges and magistrates to operate in an inflexible US-style sentencing grid system, where there is no room for discretion to take account of the circumstances of a particular offence or a particular offender. Nor are these provisions about dictating to the sentencing council the format of its guidelines. The Bill ensures flexibility in the way guidelines are framed, to allow for the entire range of offences that the council may consider. We are also receptive to the argument that Clause 107 of the Bill can be improved by providing more discretion with regard to the components of the guidelines, and accordingly we are actively considering what further changes to make to this clause. Part 7 introduces a new civil scheme, which will enable the courts to order a convicted criminal who has received a payment or other benefit from writing or speaking about his crimes, to pay the money back. The central premise behind these provisions is that it is wrong for criminals to benefit from their crimes, whether directly from the initial criminal act, or subsequently by exploiting the notoriety they have gained. It is distressing enough for victims to have to suffer the experience and consequences of the crime itself; that suffering should not be further compounded by the knowledge that the criminal is cashing in on the pain and hurt they have caused. I come now to Part 8, which deals with data protection. The provisions in this part are designed to strengthen the protection of personal data by building on the audit, inspection and enforcement powers already available to the Information Commissioner. All organisations hold and use data. In the public sector, personal data are used to expand opportunities for the most disadvantaged, to protect the law-abiding majority and to deliver improved public services. While realising these benefits, government departments and agencies also need to be fully alert to the risks of personal data either deliberately or inadvertently falling into the wrong hands. All data controllers have a duty to take action to mitigate such risks, but as a regulator the Information Commissioner needs appropriate powers to ensure compliance with the data protection principles. Clause 156 will put on a statutory basis the system of "spot check" assessments that are currently undertaken on government departments by the Information Commissioner. Assessment notices are designed to raise awareness of and compliance with the data protection principles. They are designed to help raise standards; they are not an enforcement tool in themselves. While these provisions have been welcomed, including by your Lordships’ Constitution Committee, two issues have been raised; namely, the scope of the assessment notice regime and the absence of an enforcement mechanism. On both these issues we continue to listen to the arguments. I assure the House that we are not unsympathetic to the arguments that have been put forward. I make a couple of observations. On the scope of the assessment notice regime, there is already a power to apply the regime to private and third sector organisations exercising functions of a public nature. I accept there is not a neat dividing line between the public, private and third sectors and that we need to promote compliance with data protection principles across all sectors. The question for the House is whether that existing power goes far enough, or whether certain parts of the private sector should be subject to assessment notices—perhaps those that process particularly sensitive information or very high volumes of data. On enforcement for non-compliance, it is important to put on record that the Information Commissioner already has a number of separate enforcement tools available to him, including issuing an information or enforcement notice or applying for a search warrant under Schedule 9 to the Data Protection Act. But I acknowledge the argument that a failure by a data controller to comply with an assessment notice should have direct consequences. All regulatory systems need to be proportionate and targeted. I look forward to debating whether Part 8 of the Bill as drafted gets the balance right. Before closing, I give notice of one further amendment that I intend to table for Committee stage. This links back to my previous comment on Part 8 that any regulatory regime needs to be proportionate and targeted. The House will be aware that the Courts and Legal Services Act 1990 regulates certain types of no-win no-fee arrangements, but not others. Conditional fee agreements, which allow for a "success" fee to be added to a representative’s normal fee, are subject to regulation, but the same protection is not afforded to vulnerable claimants when it comes to damages-based agreements. These agreements, which are particularly prevalent in employment tribunal proceedings, allow the representative to take a percentage of any damages awarded as their fee for bringing a case. We intend to bring forward an order-making power to control how these agreements operate. Among other things, it would be possible under the power, which will be subject to the affirmative procedure, to place a cap on the percentage that can be deducted from damages. We will consult on the detail of the order as the Bill makes its way through the House. The continued absence of controls on this type of agreement is not in the public interest. We need to plug this regulatory gap as quickly as possible to provide protection to vulnerable claimants. I have no doubt that there are a number of issues covered by the Bill that will be robustly debated. I welcome that. However, I hope that, throughout the scrutiny process, we will not lose sight of the needs of those who have suffered as a result of crime, and also witnesses and, of course, bereaved families. They deserve the best possible service from criminal justice agencies, coroners and their staff. I commend the Bill to the House.