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Coroners and Justice Bill

My Lords, I declare an interest as a member of the Joint Committee on Human Rights which has prepared two reports on the subject matter of this Bill. The Committee will surely welcome the fact that at the 11th hour the Government have seen sense and have dropped their original proposals for secret inquests, but I share the concerns of the noble Lord, Lord Pannick, and those of my noble friend Lady Miller about the Government’s new proposal and wait to see exactly what that will be. On assisted suicide, I strongly agree with the noble and learned Lord, Lord Falconer, the noble Baroness, Lady Jay, and the noble Lord, Lord Patel. As the noble Baroness said, the law as it stands is a fudge. Those who accompany a loved one abroad to die will still have to await a post facto decision by the DPP on whether a prosecution is in the public interest. The Court of Appeal has said it is a matter for Parliament, and we should not shirk our responsibility. Like other noble Lords, I believe that it is time to introduce a clear legislative framework so that a mentally competent, terminally ill person who is suffering has the right to have a medically assisted death in carefully defined circumstances, accompanied to Switzerland—if that be the right place—and with appropriate and necessary safeguards. I think the law should provide legal certainty, clarifying the circumstances under which someone who has accompanied a loved one to die overseas would face prosecution rather than leaving this entirely to the discretion of the DPP. On homophobic hate speech, I support the Government on Clause 61 as the noble Lord, Lord Waddington, will not be surprised to know. I will try to clarify this fairly difficult issue. I dislike all speech crimes of any kind; one speech crime is, of course, the race hate speech crime. It is defined in much broader terms than religious hate or homophobic hate speech crimes. There is no free speech defence, or any free speech clause in relation to race hate, whereas there is in relation to religious hate. I was responsible for introducing the religious hate free speech clause—the English PEN clause as it is known. The noble Lord, Lord Waddington, did something similar in dealing with homophobic hate speech. The question is whether you think that homophobic hate speech is more like race hate speech or religious hate speech. Does homophobic hate speech attack people for the way they are born, for their common humanity, unlike religious hate speech, which attacks people because of their beliefs or their chosen practices? My belief is that it is more like race hate speech than religious hate speech, and therefore the free speech clause that the noble Lord, Lord Waddington, successfully put into the Bill was not necessary. One can see the lack of necessity; Section 29JA of the Public Order Act 1986 provides: ""For the purposes of the offence of stirring up hatred on the grounds of sexual orientation, discussion or criticism of sexual conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or intended to stir up hatred"." When one looks at that, the answer is obvious. Of course, there are no circumstances in which such conduct could be taken to involve threatening or intending to stir up homophobic hatred. Therefore, I do not think the clause is necessary and I classify it as dealing with an attack on someone’s common humanity. For that reason, I believe that the Government are right. I recognise that it is a difficult issue and being a Liberal Democrat, I understand that the spirit of liberty is never being too sure if it is right. That brings me to criminal libel and sedition which have not yet been mentioned here. But in the other place, amendments were tabled by Evan Harris MP to abolish the offences of sedition, seditious libel and criminal libel. Those archaic offences are redundant and unnecessarily limit freedom of speech. It is time they were removed from our laws. I declare an interest as honorary vice-president of English PEN, which, along with Index on Censorship, Liberty and Justice, wrote a powerful joint letter to the Times on 20 March, pointing out that the repeal of these offences is long overdue and will send a powerful signal to states around the world that routinely use charges of sedition and criminal defamation to imprison their critics and silence dissent. The Law Commission recommended the abolition of the offence of seditious libel in 1977 and the offence of criminal libel in 1985. In 1979, in the case of Gleaves v Deakin, Lord Diplock expressed doubt as to whether the law of criminal defamation complied with the right to freedom of expression in Article 10 of the European Convention on Human Rights. He noted that the effect of the law is to turn Article 10, ""on its head. Under our criminal law a person’s freedom of expression, wherever it involves exposing seriously discreditable conduct of others, is to be repressed by public authority unless he can convince a jury ex post facto that the particular exercise of ""the freedom was for the public benefit; whereas article 10 requires that freedom of expression shall be untrammelled by public authority except where its interference to repress a particular exercise of the freedom is necessary for the protection of public interest"." In its 1985 report, the Law Commission expressed its strong objection to the law as it stands. According to the OSCE Representative on Freedom of the Media, Bosnia and Herzegovina, Cyprus, Estonia, Moldova and Ukraine have all decriminalised, and Ireland is likely to follow suit. It took us 140 years to abolish the crime of blasphemy; I hope that this House will see fit to remove these crimes from our statute book as well. I hope that the Government will support the amendments; indeed, there were straws in the wind indicating that they might do so. On genocide and the International Criminal Court Act, I entirely agree with the noble and learned Lord, Lord Falconer, my noble friend Lady Williams of Crosby and the noble Baroness, Lady O’Cathain, and support the powerful speech of the noble Baroness, Lady D’Souza. She raised the issue of the presence in this country of suspected war criminals living in conditions of impunity. Eight years ago I raised the possibility of rare cases in which neither the International Criminal Court nor British courts would have jurisdiction over suspects found in the UK. That, we know, is what happened. My noble friend Lord Carlile of Berriew—this is like Hamlet without the prince—intends to introduce amendments to the Bill. I do not need to say any more about it because so much has been well said already. I shall talk briefly about retrospectivity, however. Not only, as the noble and learned Lord, Lord Falconer, has mentioned, does the European Convention treat war crimes in a particular category for which the normal retrospectivity provision does not apply, but one thinks about what our courts did on the crime of the common-law offence of marital rape. The lawyers in the House will remember that the House of Lords reversed a 300 year-old rule that a husband could not be guilty of raping his wife, and it was said in the particular case that this involved retrospectivity since the raping husband was found guilty of something that was not an offence before he did it. Throughout a challenge based on retrospectivity, the Commission maintained, as did the House of Lords, that if you know perfectly well that what you are doing is wrong, there is no injustice in a case of that kind. I believe that the same is true with war crimes. I am delighted that the Government are going to do something about abuses of the conditional fee agreements involving vulnerable claimants, especially in employment tribunals where, I am sorry to say, some members of my profession have been misusing the system at the expense of women in equal pay cases and others. This is most welcome. Last but not least, I am delighted by what the noble Lord, Lord Borrie, said about criminal memoirs. I would certainly support him if he introduced an amendment. I was amicus curiae in the George Blake case, where we were able to make sure that that appalling, evil man was not able to benefit from publishing his memoirs. That case provides a precedent in a case of that magnitude but, if anyone is interested in the free speech implications of criminal memoirs, I recommend reading the unanimous decision of the American Supreme Court in the "Son of Sam" case. Son of Sam was a particularly evil criminal who found that the proceeds of his book about his crimes were to be confiscated. The Supreme Court unanimously held that that violated freedom of expression and the right of the public to read his memoirs. There are serious issues, as the noble Lord, Lord Borrie, said. The process of rehabilitation can be advanced when former criminals are able to write books, and if they cannot receive any royalties from the books, that would penalise them in their free expression. So although I do not enthusiastically agree with nasty people writing nasty books, I note that some nasty people have made money out of nasty books, and freedom of expression means the freedom to cause offence to some sections of the public. Therefore this is not, as the noble Lord has indicated, a proportionate use of our time, nor is it a necessary crime to add to the statute book.