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I turn to the amendment that the Minister has presented, on which I have a number of questions. First, what precisely in the amendment that he proposes does "indicated approval" mean? Clearly, there is no formal application in the sense of having judicial procedure through the courts. Would the exchanges between the Lord Chancellor and the Lord Chief Justice be a matter for public record? I am encouraged by the apparent improvement in the language from Section 10 of the Inquiries Act 2005, which states that, when a figure is appointed to an inquiry, the Minister must merely consult the Lord Chief Justice. In the current amendment, we must have his approval. That suggests to me that the Lord Chief Justice must agree with the reasons given by the Minister for needing an inquiry. In asking the Minister to confirm that, can I ask him also to explain carefully the wording of the new paragraph? If the Lord Chief Justice does not approve "that judge" whose name has been put to him, what happens then? Is the Minister saying that

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another judge will be nominated for approval? If the Lord Chief Justice refuses to give his approval for any judge, because he felt that the case presented to him by the Lord Chancellor was not suitable to be heard at an inquiry, what would happen then?

In the Commons, the Lord Chancellor said that,

I believe that that is an ambiguous statement. It is the end of what matter? Does it mean that the Lord Chancellor would stop asking for an inquiry, as he would not have the approval of the Lord Chief Justice for a judge to be nominated, and accept that he had not made his case, or does it mean that he would simply ignore the Lord Chief Justice and push through an inquiry without an approved judge? I would welcome a clear statement on the record that, if the Lord Chief Justice does not approve a judge to chair an inquiry, there will not be an inquiry.

I expect that the effect of the proposed mechanism is that the Minister, as I think he made clear in his opening statement, will be obliged to make a statement explaining what is going on and, in the words of my honourable friend in another place, explain to the House why an inquest was impossible, answer the hostile questioning of the House and allow Members of the House to express a view. We would expect nothing less than that-a chance for Parliament to be able to debate the matter. I think that the Minister was talking merely of a Written Statement, but I should be grateful for what he has to say.

The last question that I wished to put to the Minister was on seeking confirmation that a judicial review would be available. However, since he has made it quite clear that it will be available, that is an assurance that I need not ask from the Minister.

Having asked for those assurances, perhaps I may say that although it might be putting it too strongly to say that we endorse Motion A-it is an imperfect situation-we will not oppose its passage at this stage. The Government could have done better as they have been offered a great deal of advice. For us, to oppose it at this stage or to support it would not be the right way forward.

I have some difficulty with the noble Baroness's amendment moved in her Motion A1 because it would remove the inquiry route altogether. However, as she has accepted that the intercept route has stalled for the moment-at least, I presume she has accepted that-to remove it would put us back at square one. Obviously, I have some sympathy with her objections, but we have to take the pragmatic approach at this stage, as so often happens in this House, that half a loaf is better than no loaf at all. Therefore, we on these Benches will neither support nor oppose Motion A, but nor will we be able to support Motion A1.

5.15 pm

Lord Pannick: My Lords, this is a much more difficult issue than the Minister suggests. An inquiry before a judge, however eminent he or she may be, is

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simply unlikely to command the same public confidence as a hearing before a jury, especially when the hearing is determining the cause of death of someone who died at the hands of state officials. The Minister rightly emphasised that we are dealing with a very small category of cases, but they will inevitably be precisely those cases where public concern about the death is at its most acute and where the exclusion of a jury will prevent the inquest from performing its basic function of providing a process by which the bereaved family and the public can be fully reassured that an investigation has identified the cause of death.

It may well be, as the noble Lord, Lord Henley, said, that we in this House have taken the matter as far as we can. For my part, I ask the Minister to give assurances on two matters. First, will the judge who is appointed under the inquiry have the power to appoint other independent persons who have security clearance to sit with him or her in hearing this matter? Secondly, will the Minister assure the House that the report of the inquiry produced by the judge will be published in all cases in full subject only to the exclusion of any security information as approved by the judge?

Baroness Butler-Sloss: My Lords, I was not intending to speak, but the noble Lord, Lord Pannick, spoke about his hope that the Minister would give an assurance that if a judge sat in an inquiry he would have others to sit with him. I happened to sit on an inquiry of a totally different sort through 1987 and 1988, and I gained the most enormous help from three very talented assessors. I have looked with some dismay and concern at a number of important inquiries where distinguished judges or other people have been asked to sit alone. There is a huge amount of advantage in what the noble Lord, Lord Pannick, said about having others to assist the judge trying. They would not be the decision-makers: they would be the advisers. In my case, they were called assessors. That would help a great deal and would mitigate the problem, referred to by the noble Lord, Lord Pannick, about the absence of a jury meaning that it might not have the same degree of credibility. In those cases, the judge could be assisted by those who would advise, but who certainly would not make the decision.

Lord Mackay of Clashfern: I support the points made by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. It is not clear to me what exactly is supposed to happen if the Lord Chief Justice does not agree to appoint a judge. I assume that that is a necessary step in the setting up of the inquiry. Therefore, if he declines to do so, there will not be one. I assume-I hope this is correct-that the Government consulted the Lord Chief Justice when they put forward this proposal, so that he knows about it and is willing to undertake this extremely important judgment at the stage when it is supposed to be made. As the noble Lord, Lord Pannick, said, that is an important matter.

Lord Bach: My Lords, I am very grateful to all noble Lords who have spoken, particularly to the noble Baroness, Lady Miller, for moving her amendment. The amendments seek to strike out paragraphs 3 and 8 of Schedule 1, thereby removing the duty on a

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coroner to suspend an investigation following a request to do so from the Lord Chancellor in circumstances where an inquiry has been established into the circumstances of the same death. It remains our view that it is entirely appropriate that when an inquiry is established into the circumstances of a death, the coroner's investigation should be suspended and resumed only if the coroner considers that there are sufficient grounds to do so. To do otherwise would, in our view, be a waste of public money as both sets of proceedings would in essence be considering the same issues. It could lead to confusion and inconsistency as well as possibly causing added intrusion into the private grief of the family for no discernable benefit. Those problems would be amplified only if the two separate investigations came to different conclusions, particularly if they heard different evidence from different witnesses. The added grief that this would cause to the bereaved family for no good reason is surely not something that we should want.

Moreover, in those exceptional cases where an inquiry had been established in order to protect highly sensitive information, such as intercept material, from public disclosure, it could well be the case that any coroner's investigation that proceeded in parallel with an inquiry would not have access to the full facts and would not therefore be Article 2 compliant. It is questionable whether any coroner would want to proceed with an investigation in those circumstances. We consider that a coroner's investigation should be suspended pending the outcome of an inquiry and it should be a matter for the coroner to decide if there is sufficient reason to resume the investigation at the conclusion of the inquiry.

Given the concerns expressed by noble Lords about delays in complex cases, if not in inquests generally, we would have thought that that in itself was sufficient reason not to have two similar types of investigation into the same case. For any Members of your Lordships' House who may be tempted to vote for Amendments 1C and 1D, perhaps I may remind them that the effect of these amendments would be, as the noble Lord, Lord Henley, pointed out, to strike out the judicial lock in the process of establishing an inquiry, which I described earlier. If Amendments 1C and 1D were carried it would still be open to a Minister to establish an inquiry to investigate the circumstances of a death, but the important safeguard in government Amendment 1B would not be there because that part of the Bill would be omitted. So I invite the noble Baroness to withdraw her amendment. If she does not, I invite the House to vote against it.

I will respond to the noble Lord, Lord Pannick, and to those who spoke and agreed with him on the questions that he asked, and will also answer the questions of the noble Lord, Lord Henley, who asked what was meant by "indicating approval" and whether it would be on the public record. I will come to that in a moment.

The noble Lord mentioned a judge. Amendment 1B(b) refers to "a senior judge" who has been appointed under the Inquiries Act as chairman of the inquiry. The Lord Chancellor cannot simply go through a list of judges until the Lord Chief Justice is content to approve one of them. The Lord Chief Justice is being

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asked to approve the displacement of a coroner's investigation by an inquiry in the most rare of circumstances. I hope that my next sentence will answer some points asked by other noble Lords. If the Lord Chief Justice does not give his approval to the suspension of the coroner's investigation, no inquiry will be established. I could not be clearer than that.

The noble Lord, Lord Henley, asked whether the exchanges between the Lord Chancellor and the Lord Chief Justice would be made public. I do not think that he will be surprised by my answer, which is that they will not. They will be summarised in the Written Ministerial Statement that the appropriate Secretary of State will be required to make when announcing an inquiry. There could be an Oral Statement if there were major public concerns about the death that was the subject of the inquiry. We know that noble Lords and honourable Members in another place are quite able to ask Questions and get Statements if they so require.

The noble Lord, Lord Pannick, asked whether the judge who is to chair any inquiry will have powers to appoint other panel members. I do not wish to appear disrespectful-the noble Lord will know Section 4 of the Inquiries Act 2005 much better than I do. When an inquiry panel is appointed:

"Each member ... is to be appointed by the Minister by an instrument in writing ... The instrument appointing the chairman must state that the inquiry is to be held under this Act ... Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman".

The senior judge would be consulted before that appointment was made.

The noble Lord's second question, which was also asked by other noble Lords, was whether the report of an inquiry would be published in full, subject to the exclusion of security information as approved by the judge. The answer is that it will-only security matters will not be disclosed. This will be a matter of agreement between the Minister and the inquiry chairman. I hope that that goes some way to satisfying noble Lords who are interested in these matters.

I have said what I want to say. In due course I will move my amendment.

Lord Mackay of Clashfern: My Lords, has the Lord Chief Justice been consulted on the terms of the amendment, and has he accepted the responsibility that it would impose upon him if it is passed?

Lord Bach: My Lords, I must be very careful what I say about conversations that have taken place. The Lord Chancellor and the Lord Chief Justice spoke on the matter this morning, and I have no reason to think that anything that I have said would be disapproved of by either party.

5.30 pm

Baroness Miller of Chilthorne Domer: My Lords, that last reply is surprising if this has been in the Government's mind for some time and has been consulted on only this morning. I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for raising the issue.

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This debate dwelt on process, rather than principle. I can understand why that is the case, because if the Government win the day on this, process will be important. The experiences of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, are important. They asked extremely pertinent questions.

I return for a moment to what the Minister said. He talked about whether it would be helpful for a bereaved family in their private grief to go through more than one process. What matters to a bereaved family listening to an inquest is that they know the truth and that lessons are learnt for society. I know this from personal experience and because I have talked to bereaved families. When the inquiry process happens, however good the judge is, if there is loss of confidence by that family and by society, the Government will have taken a historically regrettable step. I recognise that we will not get much further with this argument today, so I ask the House to agree to my amendment.

5.31 pm

Division on Motion A1

Contents 70; Not-Contents 175.

Motion A1 disagreed.

Division No. 1


Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Broers, L.
Burnett, L.
Clement-Jones, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Dear, L.
Dholakia, L.
Dykes, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Garden of Frognal, B.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
May of Oxford, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Neuberger, B.
Nicholson of Winterbourne, B.
Northover, B.
Onslow, E.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Rogan, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Stair, E.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Watson of Richmond, L.
Williams of Crosby, B.

11 Nov 2009 : Column 834


Aberdare, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Best, L.
Bew, L.
Bilimoria, L.
Billingham, B.
Bilston, L.
Birt, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Bramall, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Butler-Sloss, B.
Cameron of Lochbroom, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Chester, Bp.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Colville of Culross, V.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grantchester, L.
Greengross, B.
Greenway, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Lewis of Newnham, L.
Lipsey, L.
Listowel, E.
Low of Dalston, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morrow, L.
Murphy, B.
Myners, L.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Paisley of St George's, B.
Palmer, L.
Pannick, L.
Parekh, L.
Park of Monmouth, B.
Patel, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Quin, B.
Ramsay of Cartvale, B.
Rees of Ludlow, L.
Richard, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Sawyer, L.
Simon, V.
Slim, V.
Snape, L.

11 Nov 2009 : Column 835

Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tombs, L.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Winchester, Bp.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Motion A agreed.

5.44 pm

Motion B

Moved by Lord Bach

Lord Bach: My Lords, the Government remain firmly of the view that the sexual infidelity exclusion in the new partial defence of loss of control, contained in Clause 45(6)(c), should remain part of that clause. The other place endorsed that view by a majority of 154. That is a significant majority against a Lords amendment. I note and, indeed, greatly welcome the fact that the Liberal Democrats abstained on that vote in another place.

On Report in this House, it was suggested that the exclusion of sexual infidelity as a cause of loss of self-control was both illogical and undesirable. We beg to differ. Far from being illogical, the Government's position is based on recognition of the history of the partial defence of provocation-a history that has led to a commonly held belief that this is a defence that can be exploited by men who kill their wives out of sexual jealousy and revenge over infidelity.

We have been clear through every stage of the Bill: as a matter of policy we do not believe that in this day and age loss of control based on anger should normally justify reducing murder to manslaughter. No one is disputing the fact that people lose their temper and kill; we are simply saying that that should not generally constitute grounds for a partial defence to murder. This is one of the reasons why we are abolishing the partial defence of provocation and replacing it with a partial defence of loss of control, which, among other things, significantly narrows the circumstances in which a defendant will be able to plead a partial defence when they kill in anger.

The Government have also been consistently clear that we do not believe that, in this day and age, sexual infidelity on the part of the victim should ever, in and of itself, constitute grounds for making out a partial defence of loss of control. Of course, we do not dispute the fact that people lose their temper and kill in response to sexual infidelity on the part of the victim, but we are arguing that this should never be a reason to justify reducing a murder charge to manslaughter and we want to put that matter beyond doubt.

11 Nov 2009 : Column 836

We are not alone in this view. No fewer than 55 organisations and individuals, including academics, practitioners, members of the public and victims of domestic abuse, have, since this House voted to remove the sexual infidelity exclusion from the Bill, taken the time to write to the Government asking for the provision that was previously in the Bill to be reinstated. Among these are the Women's National Commission, an umbrella body representing more than 550 partner organisations, many of which work directly with women who have experienced violence, Rape Crisis England and Wales, Amnesty International UK, the Centre for Action on Rape and Abuse, Justice for Women, Assist and many others. They all ask for the government provision to be reinstated in the Bill. But it is the words of a member of the public that I wish to draw to the House's attention. The lady stated in her letter:

"No-one condones infidelity; it is a terrible thing to do to someone. However, to suggest that the murder of the guilty party should be condoned is nothing short of barbaric. Usually it is men who plead this excuse but the type of man who would kill his partner is generally so controlling that he will have a history of jealousy and violence, potentially driving the woman away from him. To therefore suggest that she would be responsible for her own killing is as absurd as it is inhuman. It is not a plea that should be permitted in a supposedly civilised society".

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